DECISION NO 7 OF 25 MAY 2010 ON CONSTITUTIONAL CASE № 5/2010

The Rules of Organization and Procedure of the National Assembly which were approved in pursuance to Art. 73 of the Constitution of the Republic of Bulgaria are a statutory act which is binding on all State bodies, all organizations and all citizens. The Rules are not a law; however, by virtue of the Constitution they are on a par with any law in the statutory acts hierarchy.

The proceedings is based on Art. 149, para 1, item 1 of the Constitution.

The case was filed on 11 February 2010 as 51 Members from the 41 st National Assembly approached the Constitutional Court and asked for a binding interpretation of Art. 73 in relation to Art. 86, para 2 of the Constitution of the Republic of Bulgaria (the Constitution).

The Constitutional Court was asked to consider two matters:

First, the Court was requested to give a binding interpretation of Art. 73 of the Constitution with respect to the legal features and binding force of the Rules of Organization and Procedure of the National Assembly (ROPNA), DV, No 58/27 July 2009, amended DV, No 60/30 July 2009 and No 100/15 December 2009; and second, the Constitutional Court was requested to answer whether the ROPNA have the ,, force of law” in the meaning of Art. 86, para 2 of the Constitution. It is claimed that in the legal doctrine it is undeniable that the Rules are a source of constitutional law. The Rules develop further some standards and along with that establish new rules of conduct that have public law character.

Art. 86, paras 1 and 2 of the Constitution read thus: ,, The National Assembly shall pass laws, resolutions, declarations and addresses. The laws and resolutions passed by the National Assembly shall be binding on all State bodies, all organizations and all citizens.” Though it is Art. 73 of the Constitution and not its Art. 86, para 1 that mentions the Rules of Organization and Procedure of the National Assembly, the movants think the ROPNA shall be equally binding on all State bodies, all organizations and all citizens. Viewed from that angle the ROPNA are is on a par with a law, in the opinion of the MPs who are the movants. The MPs advance the view that the ROPNA have the force of a law inasmuch as they are irrelevant but for the Parliament's internal organization and activity. The ROPNA provide for relations with other State bodies, organizations and citizens and are binding on them. Further, it is pointed out that the ROPNA contain dozens of provisions regarding the relations of the Parliament, the parliamentary committees and MPs with other State bodies, organizations and citizens. The movants think these legal relations are subject to the ROPNA imperative texts.

The motion indicates that on 14 January 2010 the Ministry of Justice sent to the European Union its position which dealt with the ROPNA legal nature. The position explained that any restriction to holding posts is subject ,, solely to regulations that the National Assembly passes” to arrange the Assembly's internal organization and activities. „The National Assembly passes laws, resolutions, declarations and addresses and for this reason pieces of legislation that differ, i.e. a law and a regulation, shall not be on a par.” The conclusion to draw on the basis of this position is that the ROPNA are not binding and pertain but to ,, the National Assembly's internal organization.”

Art. 73 of the Constitution reads thus: ,, The National Assembly shall be organized and shall act in accordance with the Constitution and its own internal rules.” Outlined as it is by the Constitution provision, the ROPNA are a statutory act which is assigned a major role and to which great significance is attached, hence its high legal rank. The subject of the Constitutional Case is to interpret Constitution articles – Art. 73 in relation to Art. 86, para 2 – whose content in legal terms is perceived in different ways. Therefore, legal interest in their interpretation which will be binding is justified.

Having weighed the evidence gathered for the case and discussed the text of Art. 73 in relation to Art. 86, para 2 of the Constitution, the Court pronounced the following on the request for interpretation:

1. On the ROPNA legal nature and binding force

In addition to the Constitution, the Rules rank among the major legal sources inasmuch as Art. 73 of the Constitution reads that the National Assembly shall be organized and shall act in accordance with the Constitution and its own internal rules. The need is thus defined to draft and pass such an act and the subject and scope of the act are outlined. Statutory acts that create and contain the respective rules of conduct are the juristic sources of the law.

The Constitution is the fundamental and supreme though not unique source of constitutional law. Other statutory acts can be sources likewise. A group with a legal content into which the ROPNA will fit can be singled out from the acts that the National Assembly passes. The ROPNA texts show the existence of a system of rules of conduct though of peculiar nature. An analysis of the contents of any regulation will show its normative nature. The many prescriptive provisions that the ROPNA contain prove this assertion.

The Rules of Organization and Procedure of the National Assembly are a constitutional law source and hold a special place in the system of the sources of law. What is peculiar is that the ROPNA were approved to conform not to the law but to the Constitution (Art. 73). The state bodies' acts are passed at different levels of power whereas the ROPNA were passed by the National Assembly and rest directly on the Constitution. As such the ROPNA are an act of Parliament and that act is not a law but rests directly on the Constitution. The ROPNA contain multiple rules of the National Assembly's overall work and include matters of the legislating process, parliamentary control, etc.

To consolidate all thoughts on the ROPNA nature and specifics, it is to be pointed out that the Rules are an act of the Legislature which created it in an autonomous and sovereign manner. The ROPNA are intended to arrange the internal organization of the National Assembly and of its bodies, their modus operandi, the legal status of MPs and the legislating process. In legal terms the ROPNA are a special statutory act and the previous heading (National Assembly Standing Orders) invites the question whether this heading is suitable and relevant to the substance. Considering that the reality is accounted for and that the Rules arrange certain relations outside Parliament, the new heading, namely the current one, Rules of Organization and Procedure of the National Assembly, should be supported.

The Rules of Organization and Procedure of the National Assembly are a statutory act, not a law. This act is approved at one voting session on the basis of and in compliance with the Constitution and not of the law. As a special high-ranking statutory act the ROPNA are not a law in the sense of Art. 86, para 2 of the Constitution, yet they are prescriptive in the sense of Art. 86, para 2 of the Constitution and binding on all.

Amendments to the ROPNA are subject to a vote. The National Assembly can be engaged in non rule-proclaiming votes. In general decisions are not rule-proclaiming, yet rule-proclaiming votes are taken in a limited number of cases.

The law is a major act that the National Assembly creates. In legal terms it is differentiated from other pieces of legislation owing to its supreme juridical force. The same holds true of the ROPNA which are an act passed by the National Assembly and can be created by no other authority but the National Assembly. This fact determines one of the essential relations between a law and a rule. Both fall within the competence of the National Assembly. It is only the National Assembly that has the power to abolish, amend or supplement the laws and the ROPNA. The validity of laws and of ROPNA does not derive from acts passed by other authorities; it derives from the Constitution. The content in legal terms likewise accounts for the similarity between a law and ROPNA. Both the laws and ROPNA are normative acts.

Not considering the similarities between a law and the ROPNA, these are pieces of legislation that differ from each other in terms of form and substance. Apart from similarities, dissimilarities exist in the form, i.e. the procedure of creation. Dissimilarity also exists in the substance and the position of a law and of the ROPNA in the national legal system. Differences exist between the law and the ROPNA on the range of social relations that are to be arranged and on the subjects in legal relations. The crucial sectors in the country's political and social life are subject to law. The prescriptions of the law are not derivative; they are not issued on the basis of higher-ranking rules of conduct in order to further develop or specify them. A law prescription is the primary arrangement of respective social relations. A law can be passed whenever a need arises to regulate ,, social relations susceptible to durable regulation” (Art. 3, para 1 of the Law on the Normative Acts). This is not valid for the enabling legislation but holds true of the ROPNA. The ROPNA regulate a narrower and more specialized range of social relations that pertain to the organization and procedure of the National Assembly, its bodies and the legal status of MPs. The ROPNA treat matters that pertain to the National Assembly, that is, the type and range of social relations that are subject to regulation by these two kinds of acts are essential when the difference between the two is drawn.

Legally the ROPNA are a standalone statutory act of the National Assembly. As such the Rules are close to laws that are prescriptive and passed by Parliament. There is closeness between the law and the Rules, yet these two differ in their legal nature. The two pieces of legislation fall within the competence of one and the same body while the most essential difference between a law and the ROPNA pertains first to the range of social relations that are subject to regulation and second to the subjects of law. The subjects of law display specifics that arise from the effect of these prescriptions. In addition to traditional subjects like the National Assembly, its bodies and the MPs, other natural and corporate persons may be included by way of exception. However, one of the subjects of law shall always be from among the group of traditional subjects.

The ROPNA extends over the National Assembly, its bodies and the MPs. It has to be stressed though that some of its prescriptions are relevant to subjects of law outside the National Assembly – the Government, the ministers, the National Tripartite Cooperation Council, stakeholder public organizations and citizens, State institutions and officials.

It is insisted that the ROPNA are lower-ranking in legal terms than the laws owing to the less abstract substance of their legal prescriptions in comparison to the laws and also owing to their being couched in the form of rules and not of law. If this is agreed to, then the ROPNA prescription will have to conform to the law but then legally the ROPNA are based on the Constitution and not on the law. Just like the law, the ROPNA are a direct subconstitutional act and no analogy can be drawn between them and the enabling legislation. In principle an enabling piece of legislation is passed to enable the application of a law in its entirety. However, what was stated does not hold true of the other kind of regulations, namely the ROPNA. No analogy may be drawn between the ROPNA and the enabling legislation. The latter is passed on the basis of laws and for that reason the legal force is weaker than that of the law whose application is to be enabled.

2. The effect of the ROPNA beyond the National Assembly walls

An opinion is expressed in the theory of law that the ROPNA shall have no effect outside Parliament. The reason given for that refers to the Rules' organizational nature and limited subject of regulation. However, this reason is not to be agreed with. The ROPNA prescriptions prove this in a firm way. In a state with a parliamentary form of government activities in Parliament extend beyond its walls and have an implication for the functioning of the whole State machinery. The ROPNA are a codifying act which includes rules of structure, organization and procedure. The one end of the relationship is always occupied by the National Assembly, its bodies or an MP whereas an official or a citizen may stay at the other end. It must be pointed out though that it is impossible for a relation to arise on the basis of ROPNA prescriptions unless one of the subjects is the National Assembly or any of its bodies.

Therefore, the ROPNA prescriptions shall have effect in and outside the National Assembly. The Rules contain some 30 prescriptions that are pertinent to subjects outside the National Assembly. For instance, Art. 68, para 1 of the Constitution provides for the ,, incompatibility” of the functions of an MP with a state post or other activity which the law defines as irreconcilable. The main function of the Rules is to ensure the MPs' independence. The quoted proscription pertains to two kinds of incompatibility. An MP shall not occupy another state post (first) nor shall he engage in any other activity which the law defines as incompatible with the status of an MP (second) (Constitutional Court Decision № 18/2001 on Constitutional Case № 15/2001). The latter proscription pertains predominantly to private business and any activity which is not a state post. This proscription extends on anything outside the sphere of the State and it is so broad, that the lawmaker deemed it appropriate to have a law to proscribe activities that are incompatible with the status of a Member of the National Assembly. It should be pointed out that the Bulgarian Parliament has not passed a law yet to proscribe activities that are incompatible with the status of a Member of the National Assembly.

The proscription may be incorporated in several pieces of legislation. It will become effective with the passage of a law which proscribes activities as incompatible with the status of a Member of the National Assembly. The conclusion is that Art. 68, para 1 of the Constitution proscribes to perform functions as an MP in parallel with functions in the supervisory, control or management bodies of commercial companies.

As mentioned, there is not a text in any Bulgarian law to proscribe being a businessman and a Member of the National Assembly in parallel. Such a proscription exists solely by virtue of the Rules that the National Assembly has adopted. The ROPNA Art. 118, para 2 (in force from 27 July 2009) reads as follows: ,, Members of the National Assembly shall not participate in the management or supervisory bodies of commercial companies and cooperatives.” Such a proscription existed in the abolished ROPNA in force from 25 August 2005 to 27 July 2009.



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