CONTROL ON THE ADMINISTRATIVE ACTS BY THE ADMINISTRATIVE COURTS

Transcription

1 BULGARIA CONTROL ON THE ADMINISTRATIVE ACTS BY THE ADMINISTRATIVE COURTS Scope of jurisdiction 1.1. What types are the controlled acts (bylaw/individual)? As per the Bulgarian legal theory and practice the administrative acts are divided into individual, general and normative (bylaw) acts. This division is legally defined in the main procedural code, which regulates the system of administrative jurisdiction in Bulgaria - the Administrative Procedurе Code. As per the legal definition, an individual administrative act is the explicit act of volition or the act of volition expressed with action or inaction of an administrative authority or of another authority or organization which is empowered for that by law and that act of volition engenders rights and obligations or directly influences rights, liberties or legal interests of individual citizens or organizations, as well as the refusal such an act to be issued. The act of volition with which rights and obligations which have already emerged, are declared or asserted, is also an individual administrative act. An individual administrative act is also the act of volition for issue of a document relevant to recognition, exercise or discharging of rights and liabilities, as well as the refusal such a document to be issued. The refusal of an administrative authority to do or to refrain from doing a definite action is also an individual administrative act. For example, individual administrative act is the Order of the Chief of the Regional Directorate Control on Construction for removal of an illegal construction; the act for levying taxes is an individual administrative act; the act on establishing debt for fees for domestic garbage, etc. General administrative acts are those acts which have single legal effect, and it engenders rights and obligations or directly influences rights, liberties or legal interests of non-definite number of persons, as well as the refusal such an act to be issued. For example general administrative act is that act which defines the term within which the owners of vehicles should change their registration labels. 1

2 The normative administrative acts are bylaw administrative acts, which contain administrative legal rules, they refer to indefinite and unlimited number of addressees and they have multiple legal action. They are issued on the application of law or bylaw of a higher degree. The main principle of the administrative justice in Bulgaria is that the court exercises control on the lawfulness of all acts of the administrative authorities individual, general and bylaw. Some administrative acts may be expelled from the judicial control by way of an exception and only by law. The provision of art.120, par. 2 of the Constitution of the Republic of Bulgaria adopts the principle of the general clause that all the administrative acts may be appealed at the court. The citizens and the legal entities may challenge all administrative acts that affect their rights or legal interests, except those which are explicitly previewed by law What are the criteria for defining the jurisdiction on administrative cases? Are there acts of the executive power or acts of other empowered public authorities which fall out of the scope of the judicial control? The administrative jurisdiction in Bulgaria is realized by 28 regional administrative courts, which have started functioning since and by the Supreme Administrative Court of the Republic of Bulgaria. The Supreme Administrative Court of the Republic of Bulgaria has not only jurisdictional functions, but also realizes the function of supreme judicial supervision on the exact and uniform application of law in the administrative jurisdiction. The jurisdiction of the Supreme Administrative Court covers the territory of all the country. The seat and the judicial regions of the administrative courts are defined by the Supreme Judicial Council under the proposal of the Minister of Justice. The first-instance cases are distributed among the administrative courts and the Supreme Administrative Court as per the rules of the subject jurisdiction having in mind the subject of the case. The subject jurisdiction is defined by law and it can not be derogated by agreement between the parties and the court declares of its own motion its jurisdiction (acts ex officio). The main first-instance court is the administrative court which has jurisdiction on all the cases except those on which the Supreme Administrative Court has jurisdiction. The Supreme Administrative Court has jurisdiction as first instance on the following cases: challenge of bylaw normative acts except those of the municipal 2

3 councils; challenge of acts of the Council of Ministers, the Prime Minister, the Deputy Prime Minister and the ministers, the challenge of the decisions of the Supreme Judicial Council which is the main personnel (human resources) authority in the judicial system; challenge of the acts of the authorities of the Bulgarian National Bank, as well as challenge of other acts as pointed out in law. For example, as per the explicit provisions of the special laws, the Supreme Administrative Court realizes control on the lawfulness of the administrative acts issued by the independent regulatory authorities as the Commission for the Regulation of Communications,, the Council of Electronic Media, The Commission for Protection of Discrimination, the Commission for Protection of Competition, the Commission for Financial Supervision, part of the decisions of the Central Electoral Commission, the Central Electoral Commission for municipal elections, etc. The first instance administrative cases, which fall under the subject jurisdiction of the regional administrative courts, are distributed among these courts as per the rules of the general local jurisdiction. According to these rules, the cases are considered in the administrative court which is in the same region in which the seat of the administrative authority which has issued the administrative act is, and in case it is abroad in the Sofia City Administrative Court. The Supreme Administrative Court considers first-instance cases, cassation appeals and protests against first-instance judgements; private appeals against adjudications and orders, as well as claims on cancellation of judicial acts on administrative cases which have come into force. As per the Administrative Procedure Code, the procedure for issue of individual administrative acts, the procedure of challenge of administrative acts in judicial way and the procedure for execution as previewed in the Code, is not applied to the below stated acts, in spite that some of them are individual administrative acts: -parliamentary acts and acts of the President; - acts of exercising legal initiative; - acts establishing rights and obligations for the authorities and organizations subordinate to the authority which has issued the act except the cases when these acts affect the rights, liberties and the legal interests of citizens and legal entities. As per the Administrative Procedure Code, the administrative acts which directly realize the foreign policy, the defense and the security of the 3

4 state, are explicitly excluded from judicial appeal except if the law previews something else. The individual administrative acts which are part of the procedure of the issue or execution of individual administrative acts or which are part of the procedure of the issue of normative acts are not subject of separate judicial control apart from the final act with which the administrative procedure is finished Give some cases which are to illustrate the importance and the limits of court jurisdiction Case: The administrative court is seised with a claim against the decision of the commission, the latter being appointed by the contracting authority within the public procurement award procedure, and that decision proposes to the contracting authority that the company-claimant should be eliminated from further participation in the procedure. The court has checked the admissibility of the claim and has accepted that the claim is inadmissible due to the fact that the decision of the commission is not an individual administrative act because it is an act of volition which is part of the procedure of issuing an individual administrative act; the court has not considered the claim and has terminated the trial on the case. The court carries out judicial control on the administrative acts only if there are not any procedural obstacles (reasons for inadmissibility) for exercise of the right to challenge. 2. Judicial procedural rules 2.1. General presentation of the judicial procedure. Which normative act contains judicial procedural rules, which are the legislative texts? The Administrative Procedure Code is the main legislative act which contains procedural rules regulating the administrative procedure. It entered into force on , while Section Third of the Code Court procedure" entered into force on Since that date on, the administrative courts started establishing the files. Prior to , the administrative cases were considered by the administrative departments of the general courts. 4

5 With the enacting of the Administrative Procedure Code, for the first time in the Bulgarian history the administrative procedure was entirely regulated, namely the procedure of issue of individual, general and normative (bylaw) acts, their challenge and execution. It is previewed that for the matters that are not regulated by the Code, sections of the Code itself or of other laws are applied as subsidiarity. For example, the rules for the issue of the individual administrative acts are applied on the subsidiarity principle to the issue of the general administrative acts; the rules of the Statutory Instruments Act are applied when issuing normative administrative acts; when appeals are launched against administrative acts the Civil Procedure Code is applied on the subsidiarity principle. The court proceedings are regulated in Section Third of the Code - "Proceedings before the court art.126 up to art.257 of the Administrative Procedure Code. For the matters which are not settled in the code, another code is applied on the principle of subsidiarity - the Civil Procedure Code, as it was stated above. Who has more active role in the administrative procedure the court or the parties? What are their procedural rights and obligations? Does the prosecutor take part? What is his role? Is the procedure oral or written? Does the judge give the judgement on his own or does the chamber give the judgement? The Administrative Procedure Code sets the non-mandatory principle in the court procedure, which principle most generally is expressed in the following: The court procedure starts after a claim is lodged by the interested party or by the prosecutor in the cases defined in the Administrative Procedure Code or in another law. It is not permitted the court to establish proceedings ex officio. The beginning of the court proceedings depends on the will of the claimant or the prosecutor, and there is possibility at any moment the court to be dismissed with the withdrawal of the claim or the protest. Within the procedure for challenge of an individual or general administrative act any person may defend his rights and interests, which are affected by the issue of that kind of act. 5

6 The physical persons and the legal entities, as well as the state authorities, bring a claim while the prosecutor files a protest. The claim should contain the elements specified by the legislator in the Code. The term for challenge of individual administrative acts is 14 days from the date of their notifying to the interested persons. The general administrative acts may be challenged within one month from the announcement of their issue or within 14 days from notifying the persons who have participated in the procedure before the administrative authority. When challenging administrative acts which suffer of the most heavy defect invalidity (due to the fact that the act is not issued in the required form or it has been issued not by the competent authority, etc.) no term is defined and these acts may be challenged in front of the administrative courts without any time limit. The bylaws may be challenged without any time limit. As per the Administrative Procedure Code the court procedure is twoinstance, except in the cases the Code or any other law previews something else. For example, as per the Code, the court proceedings in which a dispute on the competence among the administrative authorities is to be settled, is oneinstance; one-instance is the procedure on disputes for jurisdiction among the administrative courts or between the administrative and general court; oneinstance is the procedure on challenge the actions of the executive authority, etc. One-instance procedure may be enacted by a special law for example the Spatial Development Act when the detailed organizational designs and their changes are challenged; The Judiciary System Act when the decisions of the Supreme Judicial Council are challenged when magistrate contest is held on the basis of certification, etc. The first instance is the instance in the merits the court controls if the issued administrative act corresponds to the legislative requirements according to art.147 of the Administrative Procedure Code - if the administrative act is issued by a competent authority, if it is issued in the required form, if there is any material infringement (violation) of the administrative procedural rules, if it is issued in coincidence with the material legal provisions and the aim of the law. 6

7 The judgement of the first instance court is subject to appeal at the cassation instance within 14 days from the day the parties are notified. In the cassation proceedings the dispute on the regularity of the first instance judgement is settled, but not a material legal dispute. The subject of the cassation control boils down to considering by the Supreme Administrative Court of the defects of the judgement as pointed in the appeal or in the protest, and the court carries out ex officio control on the validity, admissibility and the correspondence of the judgement to the material law. As per the Administrative Procedure Code the administrative act may be challenged at the court without using the possibility the act to be challenged before the administrative authority. As per some special laws, for example the Tax and Insurance Security Procedure Code, the challenge in an administrative way of a given individual administrative act, for example the tax-inspection certificate, is a compulsory prerequisite for its challenge in a judicial way. Parties in the court administrative procedure are the challenger, the authority which has issued the administrative act, as well as all interested parties. When addressed with a brought claim or protest against a given administrative act, the court is obliged to form the judicial case and to bring it to an end. The chairman of the court, his deputy or the chairman of the department, forms the administrative case, defines the judge-reporter on a case-by-case principle, and hands him the file. The judge-reporter fixes the date of the hearing which should be not later than two months from the date of bringing the claim to the court. The court ex officio defines the parties on the case. The court checks the regularity and admissibility of the claim or the protest and if the latter corresponds to the requirements for regularity and admissibility, orders copies of them to be sent to the parties. Within 14 days from receipt of the copy each party may present written statement and may give its evidences. The cases are considered by one judge of the administrative court and the participation of a prosecutor is not compulsory. When the court passes 7

8 judgement as a cassation instance, the court sits in a chamber of three judges. The court sits in such a chamber also when it considers cases on challenge of bylaw normative acts of municipal councils. The procedure develops with the compulsory participation of a prosecutor. The Supreme Administrative Court (as a first-instance court) considers the case in a chamber of three judges. The Supreme Administrative Court in a chamber of three judges considers cases on challenge of bylaw normative acts (except those of the municipal councils) and the participation of the prosecutor is compulsory. As a cassation instance, the Supreme Administrative Court considers the case in a chamber of three judges when the judgement is passed by an administrative court and in a chamber of five judges if the first-instance judgement is passed by a chamber of three judges of the Supreme Administrative Court. The participation of a prosecutor is compulsory in the cassation procedure. The case is considered in an open court hearing, and during this hearing the parties and the court carry out judicial actions. As per the Administrative Procedure Code the prosecutor controls the observance of the law in the administrative procedure, doing the following: -undertakes actions for repeal of illegal administrative and judicial acts; - takes part in the proceedings on administrative cases when this is previewed in the Administrative Procedure Code or in another law; - starts or enters in the already formed cases as per the Administrative Procedure Code and when he assesses that this is necessary because of important state or public interest. The prosecutor is a party on the case and he has equal procedural rights with the other parties. He gives opinions when participating in the administrative cases. The chambers in the Supreme Administrative Court are congenial authorities. Each chamber consists of a chairman and respective number of members. The chairman of the chamber tries the hearing of the case, controls its regularity, asks questions to the parties, to the experts, to the witnesses, etc. He gives one-person orders. All other procedural actions of the court when 8

9 considering the case in open or close hearing are carried out by the judicial chamber. One of the members of the judicial chamber is a reporter of the case. The rule of the penal procedure for irreplaceability of the judicial chamber up to the end of the case is not applicable in the court proceedings under administrative cases. Within one month after the end of the last hearing in which the case has been considered, the chamber that has participated passes its judgement (judicial act with which the court gives decision in the merits) or adjudication (the court passes its decision on the admissibility of the procedure). The judicial act should contain the elements which are established by law date and place of issue, pointing out the names of the members of the chamber, the secretary, the prosecutor on the case if he has participated, background and operative part, the names of the parties except in the cases when the judgement has effect to everybody, who is to pay the expenses, is the judicial act subject to appeal and if so which court is the competent one and what is the time-limit for the appeal. The judicial act is signed by all the judges who have participated in its passing even if a member or some members of the chamber have dissenting opinion. The judgement is a result of the will of the majority of the judicial chamber. The judicial act is drawn in written form which is a prerequisite for its validity. Legal subjects of the administrative trial are the court and the parties claimant and defendant, as well as the interested persons whose legal sphere is affected by the issued and challenged administrative act. The claimant is the physical person or legal entity, or the administrative authority, on behalf of whom the claim has been launched. The defendant may be a physical person or legal entity or an administrative authority. The judicial process is two-party procedure. The prerequisite is that two opposite parties should be present. When speaking about the procedural actions of the parties, we mean not only the actions of the claimant and the defendant, but also those of the interested parties, due to the fact that the judicial administrative process develops via these actions as well. 9

10 The principle ex officio is present in the administrative procedure as well as per art. 174, par. 4 of the Administrative Procedure Code, the court is obliged to assist to the parties participating in the procedure, in fixing formal mistakes, as well as to point out to the parties that they have not presented evidences for definite facts which are important for the case. The court may nominate experts ex officio. There are also other moments when the court acts ex officio. For example: if the administrative authority does not fulfill its obligation to send to the court certified copies of the whole administrative file of the issue of the challenged administrative act, the court may require the file ex officio; in case the judgement passed by the first instance, is subject to cassation control, the cassation court has the power to act ex officio controlling the validity, admissibility and the coincidence of the judgement to the material law, etc What are the rules for the admissibility of the claim? Should the claimant prove legal interest? If that is so, is the requirement for legal interest to be interpreted broadly or strictly? (cite some cases from the practice) The reasons for inadmissibility of the claim or the protest are explicitly pointed in the Administrative Procedure Code. These reasons are lack of procedural prerequisites or availability of procedural obstacles for exercising the right of challenge. The control is made by the judge-reporter or if the parties on the case are established by the judicial chamber. In case the reasons stated below are established, the claim or the protest are not considered and if the judicial file is formed, it is dismissed, namely: -the act is not subject to challenge (the challenged act is not an individual administrative act); - the challenger is not legally capable (qualified); - the challenged administrative act has been withdrawn; - the challenger has no legal interest from the challenge; - the challenge has been made after the time-limit; - there is judicial judgement on the challenge, which has entered into force; 10

11 - there is another case pending at the same court between the same parties and on the same cause; - the challenge is withdrawn or has been waivered; The other prerequisites which make the claim or the protest inadmissible are: - lack of jurisdiction on the challenge; - expiry of the term for supplementing the judgement; - the court seised has no jurisdiction on the claim or the protest; - lack of procedural capability of the challenger; - lack of power to represent; - cause for staying the proceedings. The judicial acts which the court passes on the admissibility of the claim or the protest are the order (personally by the judge-reporter) or adjudication (by the judicial chamber). The act on the admissibility of the claim or the protest are challenged at the higher court. When challenging the individual or general administrative act the claimant should state the grounds of his legal interest from the challenge, i.e. he should be affected by the issued act. 2.3.May the claimant present himself at the court or is it necessary compulsory to be assisted by a lawyer? In the first-instance court and during the cassation proceedings, the parties may participate by themselves in the judicial administrative proceedings or they may be represented by a lawyer, and the public authorities - by a legal advisor. Even when represented by a lawyer, the parties do not lose their right to be present at the hearing in the court, to be heard, to demand stating of evidences, to appeal the judicial acts, etc.; even when the parties have their judicial representative on the case, they do not lose their procedural rights and they may exercise them in full. The participation of the parties in the proceedings is not obligatory, it is enough that they are duly summoned, but it is within their interest to engage evidences, to challenge the evidences of the opposite party, to make objections, etc. 11

12 2.4. May the claims be filed by using the new technologies /through Internet/? The claim and the protest should be prepared in written form which is form ad solemnitatem. The oral claim or protest has no legal effect. The Administrative Procedure Code sets compulsory elements that the claim and the protest should contain, and habitually the non-fulfillment of these requirements is a reason for their staying up to the moment the shortcomings of the claim or the protest are removed. A compulsory element of the claim or the protest is the signature of the claimant, respectively of the prosecutor. As per the Administrative Procedure Code there is a possibility documents to be submitted in electronic way with electronic signature Is there a public or a private system which facilitates the access to court for persons, who need legal assistance, but can t get it due to financial difficulty. The right of defense, which is guaranteed by art.56 of the Constitution of the Republic of Bulgaria, includes as its material element the right of the citizens to have lawyer s assistance. This principle is developed in the provisions of art.7, par. 2 of the Judiciary System Act the citizens and the legal entities have the right of judicial defense, which can not be denied. The Administrative Procedure Code does not contain provisions concerning legal assistance and that is why on the subsidiarity principle the rules of the Civil Procedure Code and the Legal Assistance Act are applied. The legal assistance means securing of free of charge defense by a lawyer and that is granted to physical persons under certain circumstances. The means for legal assistance are secured from the state budget. The types of legal assistance are: 1/ consultations aiming at reaching an agreement before starting of the court proceedings or bringing the claim; 2/ preparing the documents for bringing the claim; 3/ representation during the proceedings. In the cases under p.1 and p. 2, the persons who might have legal assistance are those who correspond to the requirements for acquiring monthly social benefits as per the Bulgarian legislation, as well as those who are lodged 12

13 in specialized social institutions for rendering social care, as well as the accepting families or families of relatives or close persons who have accepted a child following the Child Protection Act. The application for legal assistance in the form of consultation and preparation of the documents for bringing a claim is considered and ruled by the Chairman of the National Bureau for Legal Assistance, the latter being an independent state authority with its own budget and administration. He gives his ruling within 14 days after presenting the respective documents. The refusal may be challenged before the respective administrative court. All physical persons parties in the administrative cases, who have no means to paying for a lawyer, would like to have a lawyer and the interests of jurisdiction require that, have the right to get legal assistance in the form of representation in the proceedings. The application for legal assistance is filed in the court in which the case is pending. When estimating the reasons of the demand for rendering legal assistance, the court takes in mind: the income of the person or the family; the state of property certified by a declaration; the situation of the family, the health conditions; employment; age and other circumstances. Legal assistance is not granted in either of the third forms if it is not justified because of the benefit it might bring to the person applying for legal assistance; if the claim is obviously groundless, unjustified and inadmissible as well as in the case of commercial and tax cases Do the claims stop the execution of the challenged judgements and if that is so in what cases? As per the Administrative Procedure Code the claim and the protest against the individual administrative act have suspension effect. The irregular and inadmissible claims have the same effect. The cited effect is expressed in the fact that the administrative act is not executed up to the settlement of the dispute by the respective authority. The challenge does not stop the execution of the general administrative act. The court may stop the execution if the following legally established prerequisites are available - the challenger requires that, if the execution might cause to him significant and difficultly removable damage. The requirement is 13

14 considered in open court hearing and the court gives immediate adjudication, which may be appealed with a private appeal. The challenge of the bylaw administrative act does not stop its action, except if the court establishes something else. The court adjudication for stopping the action of the bylaw normative act is published in the way the act itself has been published and enters into force from the date of its publication What are the court powers in conducting the proceedings, so that the court might put the administration under the obligation to present evidences, with which the opposite side was not acquainted? (cite suitable practice) As per the Administrative Procedure Code at the moment of filing the claim or the protest the challenger is obliged to point out the evidences, which he would like to be collected, as well as to present the written evidences which are at his disposal. Within three days from elapsing the time limits during which the rest of the persons may challenge, the authority sends to the court the claim or the protest side by side with certified copy of the whole file of the issued act. If the authority does not fulfill its obligation to send the file, the court ex officio requires the file on the basis of a copy of the claim or the protest. When receiving a copy of the claim or the protest, each of the parties may present a written reply and point out the respective evidences. The judge-reporter points out to the respective party the necessity of collecting other evidences if such evidences, except those which are in the file, are necessary for clarifying the judicial dispute. The non-execution of the obligation certain evidences to be presented in due time, for example the administrative authority to assemble the whole administrative file with evidences, has as consequence administrative-penal liability expressed in a fine to the guilty officer. As per the provision of the Judiciary System Act, each one who does not fulfill the order of a judge, prosecutor, examining magistrate, public bailiff or registration judge, and if that order is given on the basis of the law, is punished with a fine from 50 to 200 leva, in case he is not subject to heavier punishment. The fine is imposed with an order or decree after the person is granted the chance to give explanations in connection with the breach. 14

15 The judge, prosecutor, examining magistrate, public bailiff or registration judge, who has imposed the fine may repeal or reduce the fine on a complaint by the punished person, the complaint has to be brought within 7 days from the notification. Another very important consequence from non-fulfillment of the court instructions in connection with collecting evidences under the case is the principle of distribution of the burden of proof that is the power of the court, having in mind the circumstances on the case, to accept the facts, for which the party has created obstacles for collecting evidences, as proved Are there quick proceedings? Which are they? Are they applied in ordering temporary or preliminary measures or do they settle the dispute in the merits? The promptness is explicitly pointed out as a main principle in the administrative procedure and it is expressed, for example, in the requirement that assistance should be granted, as well as delivering the necessary information and forms, by the administrative authorities, the possibility certain facts to be proved with declarations in the proceedings on the issue of the administrative acts, etc. The notion quick proceedings is not used in the Administrative Procedure Code, but there are some proceedings in which the law obliges the court to pass the judgement or to consider a definite request immediately, namely: If the court is seised with a request to stop the preliminary execution of an administrative act, which execution is admitted with an order of the authority which has issued the act and that order has come into force: the court considers the request in an open hearing and passes an adjudication immediately, which adjudication may be appealed with a private appeal within 7 days after it has been announced at the hearing. When the court is seised with a complaint against the order, with which preliminary execution of the administrative act is admitted or it is refused such an execution to be admitted: the court considers the complaint immediately in close hearing, without handing copies to the parties. When the appealed order is repealed, the court considers the matter in the merits, and if 15

16 the preliminary execution is repealed, the administrative authority restores the situation as it existed before the execution. In both cited cases the court does not decide on the dispute concerning the lawfulness of the challenged administrative act, but settles preliminary matters. Chapter Fifteenth of the Administrative Procedure Code regulates proceedings which in its character and having in mind the obligation of the court to consider immediately, may be defined as quick proceedings. As per art.250 of the Administrative Procedure Code each person having legal interest, may require terminating of actions realized by an administrative authority or an officer, which actions are not based on an administrative act or on the law. The request is filed in written form at the administrative court in the place where the actions are carried out. That request is considered immediately by a judge. Immediately after finishing the verification, the court passes an order. In that case actually the court settles the dispute on the lawfulness of the realized factual actions by the administrative authority or the officer. Quick proceedings are introduced in some special laws. For example when elections for members of Parliament and for members of the European Parliament are held, some of the decisions of the Central Electoral Commission may be appealed at the Supreme Administrative Court within three days from their notification and within that term the court passes a final judgement. In the cases when the matter concerns the registration of parties and coalitions for participation in the elections, the decisions of the Central Electoral Commission may be appealed at the Supreme Administrative Court within 24 hours from their notification and the court passes a final judgement within 24 hours. 3. Powers of the administrative judge 3.1. What is the hierarchical structure in which the legal rules applied by the administrative judge are arranged? (Constitution, international treaties, laws)? 16

17 As per the Bulgarian legislation the main division of the normative acts is: national and international normative acts. The Constitution of the Republic of Bulgaria as fundamental law, which is a normative act of supreme legal force, should be pointed on the first place among the internal legal sources. It is the normative act of the highest rank and that is why it is defined as a supreme law and all other laws can not be in contradiction with it (art. 5, par. 1 of the Constitution of the Republic of Bulgaria). Not only the laws, but also the other acts issued or accepted by the state authorities, as well as their actions, can not be contradictory to the Constitution. That is why the provisions of the Constitution are the basis of the administrative legislation. Special state authority The Constitutional Court is empowered to secure the supremacy of the Constitution and to guarantee its strict observance. The powers of the Constitutional Court in that field are: passing judgements on requests for establishing the discrepancy of a law to the Constitution, as well as compulsory interpretation of the provisions of the Constitution. The judgements of the Constitutional Court are binding for the courts. The law which has been declared as contrary to the Constitution is not applied after the judgement of the Constitutional Court has entered into force, i.e. the action of the law is made null and void. Next place in the hierarchical structure of the regulatory acts applied by the administrative courts, occupy the international treaties. The Bulgarian Constitution in force contains the principal provision that the international treaties that have been ratified, published and entered into force in the Republic of Bulgaria, are part of the internal legislation and they have priority over these rules of the internal legislation which are contradictory to them (art. 5, par.4 of the Constitution of the Republic of Bulgaria).That does not mean that the rules of the international treaties automatically replace the internal legal acts and the judge should apply them there is such an effect only if there is discrepancy between the legal rule and the rule of the international treaty. After coming of the international treaty into force, in case of a conflict, the rules of the international treaty should be preferred by the competent jurisdiction, which means that these rules have priority to the rules of the national legislation which are contradictory to them. In that sense reads the provision of art. 5, par. 2 of the Administrative Procedure Code, as per which 17

18 if a law or a bylaw normative act is contradictory to an international treaty, which has been ratified in the constitutional way and which has been published and entered into force in the Republic of Bulgaria, the international treaty is applied. Next place in the hierarchical structure of the regulatory acts occupy the laws enacted by the Parliament in the way previewed by the Constitution. As per the Statutory Instruments Act, the law is to regulate fully all public relations in a definite field, which relations may be subject to permanent regulation. When passing the judicial acts the administrative judges are bound as well by the bylaw normative acts, issued by the competent administrative authorities. They are issued on the basis of the law and in compliance with the law and they have secondary (derivative) character decrees, regulations, ordinances, etc. After the Treaty for Accession of the Republic of Bulgaria to the European Union entered into force, Bulgaria became party of the Treaties for Establishing the European Communities and the European Union. The Regulations enacted by the institution of the EU have direct effect and they do not need to be introduced in the national legislation. The Statutory Instruments Act establishes that if there is discrepancy between a normative act of the national legislation and a regulation of the European Union, the Regulation is to be applied Is it possible the interpretation made by the administration ( instructions ) to be challenged at the court if that is possible what are the rules and criteria, or is it compulsory for the court? The rule of art.120, par. 2 of the Constitution regulates the right of the citizens and the legal entities to challenge these administrative acts which affect them. In that sense the interpretation made by the administrative authority is subject to judicial control indirectly when as a result of the wrong interpretation of the legal provision an illegal administrative act has been issued which act affects the rights of the interested person, or directly by challenging at the court of a normative act issued by the administrative authority on the interpretation of the law. 18

19 The criteria and causes for challenging of the administrative acts are regulated in the rule of art. 146 of the Administrative Procedure Code and they represent negative of the requirements for lawfulness of the administrative acts, namely lack of competence, not following the required form, material breach of the rules of administrative procedure, discrepancy with the material rules and non-compliance with the aims of the law. The administrative acts are subject to control only concerning their lawfulness, they may be challenged by any physical person or legal entity. The basic requirement is that the act affects or threatens his rights, liberties or legal interests Does the interpretation of the international treaties by the administration bind the court? After being ratified in constitutional way, published and after having entered into force in the Republic of Bulgaria, the international treaties become source of legal rules of the internal legislation, they are applied by the administrative authorities and the courts and have priority over the internal legal rules of the latter are contradictory to them. In such way the rule of the international treaty acquires direct effect without being necessary to be introduced by law or other normative act, or its interpretation by a definite state authority. The Bulgarian legislation does not preview enactment of acts with which the administrative authorities to give official interpretation of the international treaties to which the Republic of Bulgaria is a party. In case the administrative authority issues such an interpretative act (letter, instructions, etc.), which clarifies the sense of the rule of the international treaty, that interpretation is not binding for the court when settling the dispute on the case. The Bulgaria administrative law establishes the principle of equality as per which all the persons, who are interested in the outcome of the proceedings, have equal procedural possibilities to participate in the proceedings for defense of their rights and legal interests. Manifestation of this principle and of the principle of competitiveness, when challenging the individual administrative acts, is the equal possibility of the parties to participate in the proceedings. The equal remoteness of the court from the parties when settling the dispute is the reason for the lack of commitment of the court to the 19

20 interpretation of the international treaty, given by the administrative authority participating in the proceedings Describe by several examples from the judicial practice the scope and the limits of the control exercised by the court: does the administrative judge exercise control on the proportionality between the aim of the administrative act and its contents? Examples to be given from the field of the police and town-planning law. The Bulgarian administrative law accepts the principle of proportionality. An expression of this principle is the requirement that the administrative act and its execution should not affect rights and legal interests in higher degree than that is required by the aim in coincidence of which the act is issued. The non-compliance with this requirement represents material legal breach. The main principle, which defines the limits of the control exercised by the court, is that the administrative acts may be challenged only referring to their lawfulness. The court does not engage with the expedience (rightness) of the administrative acts. The expedience of the administrative acts is connected with the exercise of operative self-dependence of the administrative authority when issuing the administrative act. Anyhow, that does not exclude from the scope of judicial challenge, the administrative acts issued under the conditions of operative autonomy. They may be challenged concerning their lawfulness, but not on the grounds of their rightness. The operative autonomy is exercised on the basis of the law within defined legal limits and for acquiring the aims of the law, the infringement of the law having as consequence the unlawfulness of the act. The infringement of the legal requirements referring the act, issued under the estimate of the authority, is subject to challenge at the court. In connection with the matter of the control exercised by the court, referring the reasons (grounds) set in the individual administrative act and due to the contradictory judicial practice in the past, the General Assembly of the judges of the Supreme Administrative Court has issued an interpretative judgement according to which in all cases, lack of pointing out the reasons is a cause for repeal of the issued administrative act. The judicial practice accepts that there is lack of set reasons not only if no considerations are given in the act, but also when these considerations are of very general character or the 20

21 authority has exposed only factual events without expressing its attitude to them and without giving concrete considerations. It is considered that there is lack of reasoning when the reasons are illogical, not connected with the contents of the act, contradictory or it is difficult to understand the real considerations for issuing of the act. The court exercises control on the adequacy of the reason with the contents of the individual administrative act aiming at establishing the grounds for its issue. The control on the grounds of the administrative act is control on the contents of the act. The grounds for the issue of the act - factual and legal, directly concern the contents of the administrative act. Just referring the grounds, the court exercises control on the conformity with the material law - if the conclusion based on the respective evidences and factual data is lawful The opportunity given to the court is to repeal the challenged individual administrative act or to repeal the claim or he may amend that administrative act or to settle the matter in its merits? The opportunities which the court has when settling administrative cases, are to proclaim the invalidity if the challenged administrative act, to repeal it as a hole or partially, to amend it or to repeal the demand. The powers of the administrative court when settling the cases on challenge of individual administrative acts are regulated in art.173 of the Administrative Procedure Code. The principal position taken by the Bulgarian legislator is that if the court repeals the administrative act, he passes judgement in the merits. In that case the court acts instead of the administrative authority and replaces the repealed act or its part with its judgement on the administrative matter subject of the repealed act. Divergence from that principle is previewed in the cases when the administrative act has been issued under the conditions of operative autonomy, i.e. when the matter settled with the administrative act has been subject to the free assessment of the administrative authority. In those cases as well as when the administrative act has been declared invalid due to the lack of jurisdiction, or the nature of the act does not permit the settling of the matter in the merits, the court sends the file to the respective competent administrative authority, giving compulsory instructions on the interpretation and the application of the law. 21

22 3.6. In case the court repeals the individual administrative act, does it give retroactive effect of the repeal since the date of issue of the act? May the court define the moment of the effect of the repeal? When the judgement repeals the claim against the administrative act, the judgement has only declaratory effect and it has no influence on the material relationship. It is established with res judicata that the claimed right of repeal of the administrative act does not exist. The court repeal of the administrative act represents a new act with which the action of an already issued administrative act is terminated. The constitutive action of a judgement, which has come into force, referring the repeal of the administrative act, is expressed in falling out retroactively of all the legal consequences which have been ordered with the act. The aim is that all the consequences of the illegal administrative act, that have occurred, are to be removed. 3.7.What are the procedural methods that the judge has at its disposal in order to force the execution of the judgement by the administration, in case the latter does not fulfill it voluntarily? The execution starts ex officio on the initiative of the authority which has issued or should have issued the administrative act. The Administrative Procedure Act previews the obligation of the executive authority to realize the execution within the term pointed out in the executive writ. In case of non-execution of that obligation the guilty officials are subject of pecuniary sanction payment of a fine. Art. 294 of the Administrative Procedure Act regulates the possibility the non-action of the execution authority to be appealed. The right of appeal belongs to the parties in the execution proceedings, as well as to the third persons, whose rights, liberties and legal interests are affected by it. The nonaction of the execution authority may be appealed at the administrative court without time-limit, after the expiry of 7 days from bringing the request for carrying out of the executive action. When the court establishes availability of illegal non-action, the court lays fines on request by the judgement creditor and assigns the execution of the rest of the actions up to the end of the execution to the bailiff, who acts in the judicial region in which is the place of execution of the obligation. The bailiff to whom the finishing of the executive 22