Вид на акта
искане
Дата
01-01-1970 г.
Към дело
/

DECISION No 11 OF 18 DECEMBER 2007 ON CC No 6/2007

The Ombudsman of the Republic of Bulgaria approached the Constitutional Court with a challenge of the constitutionality of Arts. 107, 154 and 184 of the Energy Act (EA).
The Ombudsman claimed that these articles are inconsistent with the Constitution as they violate the rights of citizens. They contravene Art. 19, para 2 and Art. 56 of the Constitution of the Republic of Bulgaria as they take away the possibility of efficient consumer protection and thrust upon customers the burden of proof in disputes against the bills of heating, electricity or gas, transmitted or supplied by the respective companies.
The challenge of the constitutionality of Art. 107 and Art. 184 of the EA has one and the same target: this is the right of the electricity transmission and distribution companies and of the gas supply companies to collect their receivables from defaulting payers according to the procedure established by Art. 237, Littera (k) of the Civil Procedure Code on the basis of abstracts of the bills.
The Constitutional Court had already ruled on a challenge of the constitutionality of Art. 154 of the Energy Act which provides for the procedure by which a heat transmission company can collect its receivables from defaulting payers for the service supplied to them in the very same way. The Constitutional Court’s Decision No 4/2007 on Constitutional Case № 10/2006 turned down the challenge of constitutionality as it did not receive the required majority of more than half of the votes of all justices to proceed with the case.
However, Art. 107 and Art. 184 of the EA that are challenged differ from Art. 154 of the EA. The difference does not concern the procedure of arrears collection in Art. 237, Littera (k) of the Civil Procedure Code; it names the parties that may resort to such a procedure. The cited legal texts whose compliance with the Constitution is challenged significantly increase the number of parties that may resort to the said procedure – in addition to the suppliers of last resort of electricity and natural gas that are privileged to apply the said procedure to defaulting payers who in the hypothesis of the EA are termed ,,households”, the public providers, the public suppliers of electricity and natural gas, the electricity system operator, the transmission company and the distribution companies can also resort to the procedure in question as corporate entities and sellers to defaulting payers as contracting agents in the energy sector.
Art. 150, para 3 of the Constitution reads that the Ombudsman may approach the Constitutional Court with a request for declaring unconstitutional a law which infringes rights and freedoms of citizens. As the Ombudsman approached the Constitutional Court with a challenge of the constitutionality of Art. 107 and Art. 184 of the EA in the part that relates to the application of the procedure in Art. 237, Littera (k) of the CPC concerning the collection of arrears in transactions between energy generating plants and energy sellers, he overstepped the competence that Art. 150, para 3 of the Constitution entrusts. The part that can be said to fit into the hypothesis of violated rights of citizens in the meaning of the Constitution text in the concrete challenge of the constitutionality of Art. 107 and Art. 184 of the EA concerns the privilege that the challenged texts grant to a supplier of last resort to collect receivables from defaulting payers as citizens in the meaning of Art. 150, para 3 of the Constitution according to the procedure of Art. 237, Littera (k) of the CPC.
The Constitutional Court considered the arguments in the challenge and the positions submitted in writing and ruled as follows:
On the alleged noncompliance with Art. 56 of the Constitution The Constitutional Court unanimously turned down the claim of the noncompliance of the cited texts with Art. 56 of the Constitution for the following reasons:
The right to legal defense that Art. 56 of the Constitution proclaims is a fundamental Constitution-enshrined right of exceptional importance in a state committed to the rule of law. While this right has a broad scope it presupposes first and foremost an obligation on the part of the State to intercede, in an efficient way, in the defense of rights that are violated or endangered with the judicial or administrative authorities. The State through its Legislature guarantees this right to legal defense. Arts. 244, 250 and 254 of the CPC allow for the exercise of this right in a judicial process despite the transfer of the burden of proof by appeal of the resolution on the basis of which a writ of execution is obtained or by objection to the executionary proceedings or by adversary proceedings with negative declaratory action.
On the alleged noncompliance of Art. 107 and Art. 184 of the EA with Art. 19, para 2 of the Constitution
As the majority of more than half of the votes of all Constitutional Court members required for a ruling of the Constitutional Court was not achieved (Art. 151, para 1 of the Constitution), agreed positions were not formulated for a decision.
Justices Vassil Gotsev, Lyudmil Neikov, Vladislav Slavov, Evgeni Tanchev, Plamen Kirov and Krassen Stoichev ruled as follows:
Art. 107 and Art. 184 of the EA allow collecting arrears for the supply or transmission of electricity and natural gas and for services rendered thereby under this Act from defaulting payers according to the procedure established by Littera (k) of Article 237 of the Civil Procedure Code on the basis of abstracts of the bills. The non-judicial execution grounds as the abstract of an unpaid bill grants a privilege to the claimant who is spared the need to be a moving party in an adversary proceedings and is free to proceed with forcible execution without a court procedure against the defaulting payer.
While the Constitutional Court invariably abides by the principles of free economic initiative of economic actors and of guaranteeing equal legal conditions for economic activities as proclaimed by Art. 19, para 2 of the Constitution, it stresses that these principles are not absolute and that they can be curtailed in order to protect other Constitution-enshrined values or for the sake of priorities or interests of high public importance. The provision of and the guarantees for equal legal conditions in the sense of Art. 19, para 2 of the Constitution presuppose legal equality, not economic equality. In the case in question, the challenged legal texts create legal inequality as they grant a privilege to the mentioned companies to collect their receivables in a facilitated procedure. Arguments that such an arrears collection procedure will guarantee the stability, security and permanence of the electricity and gas supply have economic justification, however they give no reason for overlooking the Constitution-enshrined principle of the provision of and guarantees for equal legal conditions for economic activities. These arguments do not conform to the prescription of the Constitution’s Art. 19, para 2 of consumer protection by the law. This Constitution prescription makes it binding on the legislating body to conform to this imperative rule in the adoption of the consumer protection-related legislation. This rule shall not be sacrificed or overlooked for the sake of other concerns like economic discretion, public need and suchlike. Thus, consumer protection acquires meaning and significance of its own and it must always be conformed to in a legislating process that produces regulations for an economic activity that touches on the consumer rights and interests. Therefore, when a law attributes an act a non-judicial execution dimension as part of the legal conditions for carrying out economic activities, it must conform to the prescription of Art. 19, para 2 of the Constitution, viz. to protect the consumer as the regulations adopted concern the consumer.
Art. 107 and Art. 184 of the EA overlook that Constitution prescription. The texts ignore the interest of the customer who uses the service whose mode of payment is described in Art. 237, Littera (k) of the CPC on the basis of an abstract of a bill. To be more concrete, the lawmaker forgot that the Constitution makes it binding to have an adequate mechanism of consumer protection in the event of breach of consumer interests. To indicate that consumer interests are really at stake it is enough to mention that the privilege enjoyed by the two groups of companies of forcible collection of arrears without adversary proceedings thrusts upon the customers the burden of proof (Art. 254 of the CPC), the financial burden and the risk if legal action is taken to dispute arrears. Further, according to Art. 250 of the CPC the customer who disputes the arrears is bound to provide a security to the extent sufficient to satisfy the creditor’s claims according to the procedure of Art. 180 and Art. 181 of the Obligations and Contracts Act in order to suspend the forcible execution on the property. The presumption that the tools provided by Art. 107 and Art. 184 of the EA are outside the scope of consumer protection as defined in the Consumer Protection Act is untenable. Art. 19, para 2 of the Constitution firmly and unambiguously prescribes that the regulations of the conditions for business should be designed in a way that protects the consumer. What is implied is that consumer protection is not to be confined to a special Consumer Protection Act but that when equal conditions for economic activities are created and guaranteed the law must protect the consumer.
On the basis of the stated arguments the above named justices ruled that Art. 107 and Art. 184 of the EA, the phrase “suppliers of last resort” is noncompliant with Art. 19, para 2 of the Constitution and must be declared anticonstitutional.
Justices Emilia Droumeva, Blagovest Pounev and Dimiter Tokoushev ruled thus:
Reference to a violation of the principle of guaranteeing equal legal conditions for economic activities is not directly relatable to the protection of the rights of consumers of the service provided by the electricity and gas suppliers; it is relatable to the market freedom of the economic actors though it impacts the improvement of the quality of consumption with the conditions that it creates to promote competition. However, these are the free market protection economic mechanisms and not the legal tools of consumer protection that Art. 19, para 2 of the Constitution provides for.
The principle of guaranteeing equal legal conditions for economic activities implies relations between the manufacturers of goods and services and not producer-consumer relations. Therefore, the judgment of compliance with the Constitution should focus on the protection of consumer rights despite the relation between protection and the economic activities according to Art. 19, para 2 of the Constitution. However, this relation does not imply that the two activities are identical though they are carried out simultaneously; this relation presupposes the minimization of the negative impact of the production of goods and services and one aspect of that impact may affect consumer rights.
The discussion of the constitutionality of the challenged articles in the context of the principle of guaranteeing equal legal conditions for economic activities despite the nonexistence of direct relation between its observation and consumer rights protection is also necessitated by the fact that the Ombudsman’s challenge sees the violation of Art. 19, para 2 of the Constitution in the facilitated procedure that the electricity and gas suppliers apply towards defaulting payers. The procedure is necessitated by the specific nature of the energy sector in general and of the energy supply component, in particular and because of that it cannot be perceived as a privilege enjoyed by the energy companies and denied to all other economic actors and as an underprivileged status of the energy services customers.
The energy companies that are natural monopolies (regional and sectoral) have the obligation and not the privilege to supply energy to all customers for it is a universal service on which the general quality of life in a society and the security of individual customers depends. This circumstance determines the energy suppliers’ specific modus operandi, which must maintain the electricity supply process continual. Hence, the need of quick investment returns to keep the process continual and prevent a hitch, i.e. the necessity of selling fast the output of the undertakings which will be depleted of capital and unable to operate as efficiently as they should if the customers of energy delay payments. To prevent that a facilitated procedure is granted to the electricity and natural gas suppliers to collect their receivables from defaulting payers on the basis of abstracts of the bills.
The judgment whether the principle of guaranteeing equal legal conditions for economic activities is abided by should be based on the listed specific features of the energy sector and the energy supply service that it renders, that is, on the sector-specific conditions. If under these conditions, all economic actors in the energy sector have identical legal status, the principle that Art. 19, para 2 of the Constitution proclaims is abided by. This is so because the facilitated arrears collection procedure applied to defaulting payers to whom energy has been supplied is a general legal concept, which covers all providers of universal services – the heat, electricity, gas and water supply companies. These companies should not be compared to undertakings in other sectors of the economy to maintain that they are given preferential treatment with the privilege to apply a facilitated arrears collection procedure.
The Ombudsman’s reference to Art. 86 of the Treaty Establishing the European Community to prove the opposite is a misreading of the text which guarantees the freedom of economic initiative within Community member states. The text reads that undertakings entrusted with the operation of services of general economic interest shall be subject to the rules of competition in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them, i.e. in so far as the specific nature of the sector and their activities do not dictate digression from these rules.
As already noted, Art. 86 of the Treaty Establishing the European Community covers only undertakings and for that reason cannot justify such a conclusion. The energy supply as a service of general economic interest and the relation to consumer rights is treated in EU law and in directives that are not cited in the challenge but that have been transposed into the Energy Act. The twin directives of the European Parliament and of the Council relevant to the case are: Directive 2003/54/ЕC concerning common rules for the internal market in electricity and Directive 2003/55/EC concerning common rules for the internal market in natural gas. Therefore, the question of energy supply and consumer protection is present in the Bulgarian law domain: protection is extended on a number of fundamental rights of citizens, inter alia, the right to information about the commodities and services and the right to legal defense of consumer economic interests against unequal contractual conditions – Art. 2 of the Consumer Protection Act (CPA).
In that context, it must be noted that the challenge of constitutionality does not pertain to Art. 237, Littera (k) of the CPC which provides for the facilitated procedure of arrears collection by the energy suppliers; it pertains to the Energy Act texts that make cross-references. Therefore, if the reference is not at variance with the Constitution, the applicable text of Art. 237, Littera (k) of the CPC as it is does ensure the right to legal defense for a defaulting payer against an energy supplier in the meaning of Art. 56 of the Constitution with the options of contestation of forcible execution according to Art. 244, Art. 250 and Art. 254 of the CPC.
Therefore, the only examination to make is into consumer economic interests to see whether they are affected by unequal conditions in the general contract with the energy supplier who will be privileged to collect receivables in a facilitated procedure. The Ombudsman’s challenge refers to Council Directive 93/13/ЕEC от 5 April 1993 on unfair terms in consumer contracts – the contractual terms as defined in Art. 3 which reads that a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. However, Art. 4, para 2 of the Directive reads that assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language. If the assessment of affected consumer interest is made in this context, the conclusion is that the consumer has been duly informed, in keeping with the Energy Act, of the energy supplier’s claimed amount of money.
According to the law, the price of the service is not a market price; it is fixed by the State Energy and Water Regulatory Commission whose decision is subject to judicial control. The metering of the electricity and natural gas supplied is done with special metering devices whose readings can be understood by the customer. The supplier is free to resort to forcible collection providing a bill of the energy consumed can be produced. However, this matter is beyond the control of compliance with the Constitution and is relatable to the energy strategy that encompasses the modernization of the sector, the reduction of energy consumption, the liberalization of the energy market; also it is relatable to sustainable economic development which would decrease the household energy expenditure in the total expenditure with a higher standard of living, that is, it is relatable to a concept of governance that is outside the scope of Art. 19, para 2 of the Constitution and does not violate it. Given this, the challenged Art. 104 and Art. 184 of the EA cannot be seen as noncompliant with the Constitution as the consumer’s economic interests are not affected by unfair terms in the general contracts made with the energy suppliers.
Hence, the challenge of the constitutionality of Art. 107 and Art. 184 of the EA in relation to Art. 150, para 3 of the Constitution should be dismissed.
For the reasons stated and on the grounds of Art. 149, para 1, subpara 2 of the Constitution and Art. 22, para 2 of the Rules on the Organization of the Activities of the Constitutional Court, the Constitutional Court dismissed Resolution No 5 of 9 October 2007 on Constitutional Case № 6/2007 in the part where the challenge of the Ombudsman of the Republic of Bulgaria of the constitutionality of the whole Art. 107 and Art. 184 of the EA is admitted upon its merit.
The Constitutional Court agreed to consider the phrase ,,suppliers of last resort” only in so far as Art. 107 and 184 Art. are concerned. The rest of the challenge was dismissed and was not examined. The Constitutional Court rejected the challenge, admitted on merit, of the Ombudsman of the Republic of Bulgaria of the constitutionality of Art. 107 and Art. 184 of the EA in the part with the phrase ,,suppliers of last resort.”