DECISION № 6 OF 29 SEPTEMBER 2009 ON CONSTITUTIONAL CASE № 7/2009 Г.
The Constitutional Court was approached by the Sofia City Council with a case of a suit of competence between the Municipal Council and the Council of Ministers of the Republic of Bulgaria on the grounds of Art. 149, para 1, subpara 3 and Art. 150, para 1 of the Constitution and Art. 12, para 1, subpara 3 and Art. 17, para 3 of the Constitutional Court Act (CCA) that allow the local authorities to enter into disputes of competence with the central government.
The claimant asks the Constitutional Court to pronounce a judgment on whether the Council of Ministers has the prerogative to approve a specific Waste Management Bill for Sofia Region and submit it to the National Assembly to be considered by it as it is seen tantamount to an usurpation of the local authorities' prerogatives to carry out the waste management activities within a municipality and as direct noncompliance with the Constitution of the Republic of Bulgaria and with the European Charter of Local Self-Government (ECLSG). It is claimed that the usurpation of prerogatives is a breach of Art. 2, para 1, Art. 136, Art. 141, para 1, subpara 3, paras 2, 3 and 4 and Art . 142 of the Constitution and of Art. 9, para 3 of the ECLSG.
To judge, the Constitutional Court considered:
Acting on a report from the Minister of Regional Development and Public Works, the Minister of Environment and Water, the Minister of Health and the Minister of Finance, the Council of Ministers passed its Decision № 365 of 19 May 2009 on the approval of a Waste Management Bill for Sofia Region and on the submission of the Bill to the National Assembly for approval. The Bill provides for a full transfer of the waste management in Sofia into the central government. The Bill's transitional and concluding provisions envisage amendments and supplements to the Stamp Duty Act, the Local Taxes and Fees Act, the Waste Management Act and the Spatial Planning Act. Disagreeing with the Council of Ministers decision, the Sofia City Council passed its Decision № 355 of 30.05.2009 enjoining to approach the Constitutional Court with a complaint of suspension of prerogatives and competences inherent in a municipality and laid down in the Constitution and in the ECLSG. The dispute of competence between the Sofia Municipality and the Council of Ministers was discussed in the conditions of the CCA's Art. 17, para 3 but was not settled.
According to Art. 2, para 1 of the Constitution the Republic of Bulgaria is a unitary state with local self-government. That provision expresses the trend of democratization and decentralization of state governance. The mention of local self-government along with and in relation to the form of state structure, expresses the importance that the Constitution attaches to it. Art. 136, para 1 of the Constitution defines a municipality as the basic administrative territorial unit at the level of which self-government is practiced. On the one hand, the public administration in the municipality is decentralized; on the other hand, a complete system of local self-government is put in place in the municipality. It is local self-government that is the salient feature of a municipality and that singles it out in the company of other administrative territorial units and determines its special place in the system of the territorial organization of state power. Local self-government is executed by bodies that are elected by the citizens and directly by a referendum and a general assembly of the population. A municipality is a legal entity (Art . 136, para 3) and along with the State is an independent holder of rights and responsibilities in the domain of the law of estate, law of commerce and law of obligation. The real formation of an independent economic footing for local government relates to an autonomous budget that is provided to it and that it has the authority to manage (Art. 141, para 1), and to the obligation of the State ( para 3) to provide supplementary economic resources to local authorities. The above explanation leads to the conclusion that the Constitution treats local self-government as a form of decentralization of the state power in order to enhance the role of the self-governing communities in the solution of problems of local relevance.
Inasmuch as the Constitution does not determine the scope and type of activities that municipalities can and should carry out, the above statement can be extended on the basis of Art. 3 of the ECLSG to the effect that it is the right and the real opportunity of local communities to regulate and govern a substantial part of public affairs to the extent the law allows and on their responsibility and in the interest of the population in the municipality.
In view of the expounded nature of local self-government and of its treatment in the Constitution, it may be agreed that the scope of municipal powers must be as broad as maximally possible while the ways of exercising these powers must rest on broad autonomy which combines with the availability of resources for their exercise. Waste management is one of the elements that makes up an essential part of local self-government public affairs effected in the interest of self-governing communities. It is not an irrelevant fact for this conclusion that the Constitution does not provide for and does not allow an alternative mode of legislative resolution concerning the prerogatives of local authorities.
Having considered that, the Constitutional Court judged that the Constitution of the Republic of Bulgaria treats local self-government as a form of decentralization of state power in order to enhance the role of the self-governing communities in the solution of problems of local relevance. The Constitution guarantees that local authorities enjoy the right and the real opportunity of local communities to regulate and govern a substantial part of public activities and affairs to the extent the law allows and on their responsibility and in the interest of the population in the municipality. Waste management is one of the elements that makes up an essential part of local self-government public affairs.
Председател: Румен Янков