DECISION No 18 OF JUNE 30, 1998 ON CC No 17/98
The Constitutional Court was approached by the Council of Ministers asking for binding interpretation of Art. 18 para 5 in relation to Arts. 1,2,3 and 4 of the Constitution as to whether the part of paragraph 5 “concessions on sites” can apply to the exercise of the State’s sovereign rights under paras 2 and 3.
The State’s sovereign rights in Art. 18 para 2 of the Constitution are on sites - biological, mineral and energy resources of the continental shelf, and the exclusive off-shore economic zone and on activities - prospecting, development and protection of the same resources. Under Art. 18 para 3 of the Constitution “The state shall exercise sovereign rights with respect to radio frequencies and the geostationary orbital positions assigned by international instruments to the Republic of Bulgaria.” The State exercises its rights in such cases not as a holder of the right to property but as a suzerain.
Art. 18 para 5 of the Constitution lists the legal instruments by which the State’s rights in that article are exercised, viz., concessions over units of property and licenses for the activities deriving from such rights. Owing to the special nature of the sovereign rights in Art. 18 paras 2 and 3 of the Constitution, in most cases it is impossible to differentiate the units of property and the activities related to them. For instance, when radio frequency spectrum is granted for television or radio broadcasting, it is concession granted on the unit, a segment of the radio frequency spectrum, and also on the right to do a certain business. For this reason it should be taken for granted that the Constitution does not bind the granting of sovereign rights under paras 2 and 3 with only one for the instruments under Art, 18 para 5. Both instruments can be applied and it is the legislator to decide how these rights are to be exercised. For that reason the Constitutional Court interpretative decision assumes that the State’s sovereign rights under Art. 18 paras 2 and 3 of the Constitution in view of their specifics can be exercised both by granting concessions and permits (licenses) while the law decides which regime shall apply.
