DECISION № 5 OF 22 APRIL 2010 ON CONSTITUTIONAL CASE No 15/2009
The heating installation in a condominium - project building shall be a common part . All flat owners and holders of a right in rem to use the installation and all common parts of the building shall , in proportion to the title , bear the burdens and derive benefits from the use , including , but not limited to , share the costs for the heating of the common parts of the building even when they have requested disconnection of the heat supply for heating of their individual properties. Doing so is not inconsistent with the Constitution protection of right of consumers.
The proceedings is based on Art. 149, para 1, item 2 in relation to Art. 150, para 3 of the Constitution.
The Ombudsman of the Republic of Bulgaria challenged the constitutionality of Art . 153, paras 1 and 6 of the Energy Act ( DV , No 107 / 9 December 2003, last amendment DV, No 82 / 16 October 2009).
The challenge insists that the heat released by the building installation and the heat for the heating of the common parts in a condominium - project building shall be allocated among all customers in proportion to the design heated volume of the individual properties. In consequence even if there was no individual consumption, the consumer is billed for the heat that the heating installation gives off. An individual customer in a condominium-project building has no option of complete disconnection; he or she may wish to discontinue to use the supplier's services, yet by virtue of the law they continue to be considered customers of the heat released by the building system and by the heating units in the common parts of the building. The Ombudsman thinks that the text of Art. 153, paras 1 and 6 of the Energy Act fails to protect consumer rights; on the contrary, it fully guarantees the business interests of heat suppliers to the detriment of the individual customer rights and thus violates Art. 19, para 2 of the Constitution.
The Constitutional Court discussed the Ombudsman's challenge, the positions of the parties concerned, the facts and the existing legislation and ruled as follows:
The Ombudsman insists that the challenged legal text is at variance with Art . 19, para 2 of the Constitution reading thus : ,, The State shall establish and guarantee equal legal conditions for economic activity to all citizens and legal entities by preventing any abuse of a monopoly status and unfair competition, and by protecting the consumer. ” The pivotal points of the challenge suggest violation of the third hypothesis of the provision quoted, viz. that the law shall protect the consumer. It concerns an obligation of the State, in compliance with the Constitution, to protect consumers for the reason that Art. 19, para 2 is incorporated in the Constitution's Chapter One, “Fundamental Principles”, and does not concern consumer rights that are explicitly provided for in the Constitution for the fundamental rights of citizens are treated in Chapter Two of the Constitution.
The protection of specific consumer interests should not be identified solely with the consumers ' participation in making consumer contracts for the sale and delivery of services with terms and conditions that the seller sets in advance . Consumer protection is market oriented while the market is dynamic and it is where the balances are to be sought – the balance between producers and producers , between producers and customers and between different categories or groups of customers . Consumer protection extends, inter alia, over the environment and lifestyle. The Constitutional Court passed its Decision № 1/2002 on Constitutional Case № 17/2001 that decreed that Art. 19, para 2 of the Constitution is to be perceived as providing for the extension of legal consumer protection over certain quality standards for certain goods and services and sees no reason to abandon this concept.
In general a ,,consumer” can be defined as a party to a transaction – the party that acquires commodities or uses services for individual needs or consumption. Though the term ,,consumer protection” is used in the Constitution, what is implied is the protection of consumers, not of the individual rights of an actual consumer. The rights of consumers in the Republic of Bulgaria are treated in the Consumer Protection Act (CPA) and some of these rights are defined as fundamental in the CPA Art. 1, para 2 . § 13, item 1 of the CPA Supplementary Provisions contains a legal definition of the general term ,,consumer”. Other definitions of ,,consumer” exist in the national legislation as they were formulated for the needs of special laws. The Energy Act reads that a c ustomer of energy for household uses shall be any natural person who is owner or user of a property and who uses heat with hot water or steam for heating, air conditioning and hot-water supply for the household ( § 1, item 42 of the Energy Act Supplementary Provision).
On the assertion of the noncompliance of Art . 153, para 1 of the Energy Act with Art. 19, para 2 of the Consitition .
Art . 153, para 1 of the Energy Act reads that all owners and holders of a right in rem to use in a condominium - project building , who are connected to a substation or to a self - contained branch therefrom , shall be considered customers and shall be obliged to install share distribution devices referred to in Item 3 of Art . 140 (1) on the heating units in the properties thereof and pay a price for heat under the terms and according to the procedure established in the relevant ordinance referred to in Art . 36, para 3 ( the Court found an imprecision in the legislation and an error in the reference for as a result of the amendment ratified by the Act Amending the Energy Act /DV, No 74/2006 / in fact the share distribution devices are treated in Art. 140, para 1, item 2, not item 3).
The Ombudsman ' s major assertions of noncompliance with the Constitution of the text challenged are inspired by the customers ' obligation to pay for the heat in the impossibility to request to be fully disconnected and to discontinue to use the district heating company's service. Hence the Ombudsman's conclusion that the text does not protect the consumer and consumer rights; on the contrary, it exclusively guarantees the district heating company's business interest. The challenge is based on the concept that a disconnected person is compelled to pay for the costs (losses) that the district heating company incurs as it delivers the heat to the properties of customers who use the service and that the heating installation pipes go via and around the properties of the persons who have requested to be disconnected but now they are paying for a service that is not delivered to them.
Central heating supplies customers in a building all the time at prices that are administered by a state authority and for the time being there is no alterative to supply a different type of energy to meet heating needs . The supply of heat with hot water or steam as a heat-transfer medium for heating falls into the range of ,,universal service” in the sense of § 1, item 4 of the Energy Act Supplementary Provision. Such universal service may not be refused for reasons not specified in the Energy Act and its purpose is to ensure to consumers a good standard of living by means of steady, hygienic and thrifty consumption of heat and hot water for household needs. The service maintains a normal temperature in all premises of buildings.
The heat supply shall be implemented by means of works and facilities for generation, transmission, provision and distribution. The heat transmission companies operate the heat transmission network which is to transport the heat from the generation plant to the customers under equal and nondiscriminatory conditions.
Customers shall be connected to the heat transmission network by means of a connecting heating main and a subscriber sub - station which, if intended for connection for household uses, shall be constructed by the heat transmission company and shall be owned by it thereby. ,, Subscriber sub-station ” shall be a fixture whereby heat is delivered, metered, converted and regulated as to parameters from the heat transmission network to customers ( § 1, item 1 of the Energy Act Supplementary Provision ). The commercial metering devices for the quantity of heat shall be installed in the subscriber sub-station . The property boundary of the facilities between the heat transmission company and the heat customers in a self-contained building or in a condominium-project building shall be the last stop valve upstream of the distribution network of the building systems (Art. 156, para 2, item 3 of the Energy Act). This is where the quantity of heat that is supplied to the building is metered by means of commercial metering devices (heat meters) which are subject to metrological control in pursuance to Art. 23 ff. of the Measurements Act.
The heat supplied to the subscriber sub-station enters the building system. In condominium-project buildings the heat is distributed through a share distribution system that was introduced in Bulgaria in 2001 by Art. 112 d of the Energy and Energy Efficiency Act (EEEA) (abolished). To conform with Art. 1 of Directive 2006/32/ EC the Member States are to draw up and implement energy tariff programs for the heating, cooling and domestic hot water on the basis of the actual consumption. The principle of t he billing, to occupants of buildings, of the costs of heating, calculated in proportion to actual consumption is laid down in Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings.
The metering of the quantity of heat that the building installation gives off is treated in Art . 143 , paras 1 and 3 of the Energy Act . Upon application of a share distribution system through individual allocators, the heat released by the building system and the heat for heating the common parts of a condominium-project building shall be allocated among all customers in proportion to the design heated volume of the individual properties . The quantity of heat released by the building installation is determined by the thermophysical properties of the building and of the heating installation and by the outdoor temperature in the residential area in the billed period and is not determined by the heat consumption in different properties. The building installation of a condominium-project building heats the enclosure walls of the properties and as a result of heat exchange it supplies heat to all properties, including those whose owners have the heating units in their properties sealed or dismantled or else have their thermostat valves switched off. Heat for heating is divided into heat for heating of the properties, heat released by the building system and heat for heating of common parts ( Art. 142, paras 1 and 2 of the Energy Act) and the last two, as per Art. 143, para 3 of the Energy Act, shall be allocated among all customers in proportion to the design heated volume of the individual properties. This provision is not challenged.
Art . 140, para 3 of the Energy Act explicitly provides that the building heating and household hot-water supply systems shall be common property of the condominium project. The building heating supply system is not owned by the heat transmission company or by the heat provider. The purpose of the building heating system is to heat indoors the condominium-project building and the function of the heating pipes is to transport the heat to the properties of individual customers. Thus the system actually gives off heat inside the building by heating the walls, the floors, etc. and increases the temperature in the whole building. Common parts cannot be detached from the building in a way to provide the needs of few owners and holders of a right in rem . It is to be concluded, therefore, that occupants in such buildings do not recompense the district heating companies for their losses en route, as the Ombudsman claims, for the companies cease to be owners as the pipes reach the sub-stations where the whole quantity of the heat that the condominium-project building consumes is metered. Inside the condominium-project building it is up to the occupants to agree among themselves on all matters of the heat consumption, distribution and payment. The district heating companies are uninterested in what is paid for the common parts as they hold title to the property which does not extend beyond the sub - station to which the building is connected .
Art . 38, para 1 of the Ownership Act reads that i n buildings in which floors or parts of floors are owned by different owners, common for all owners are the land on which the building is constructed, the courtyard, the foundations, the external walls, the internal dividing walls between separate parts, the internal supporting walls, columns, cross beams, floor slabs, trimmer joists, staircases, landings, roofs, walls between attic and basement premises of the individual owners, chimneys, external entrance doors to the building, and the doors to the common parts of the attic and basement, the main lines for all manner of installations and their central outfits, elevators, drain-pipes, the janitor's apartment and everything else which by its nature or purpose serves for common use. Condominium ownership includes the properties and the respective shares of the common parts of the building. Common parts in a condominium-project building may not be partitioned (Art. 38, para 3 of the Ownership Act) and each owner shares in the benefits and burdens of the condominium in proportion to the title. The common property shall be used and managed in accordance with the resolution of the joint owners owning more than half of the common property. Each joint owner may use the common property in accordance with its purpose and in such manner as not to interfere with the other owners' use according to their rights. Once the general meeting of condominium owners takes a resolution by qualified majority of two thirds of all owners and holders of a right in rem to use in a condominium-project building, following the procedure of Art. 133, para 2 of the Energy Act for connection into the heat transmission network, each joint owner is entitled to use the heat that is supplied to the building. In addition all condominium owners are bound to share in the condominium-related burdens and pay the heating bill for the common parts of the building and the heat that the building installation gives off. Payment for the heat released by the building system is unrelated to whether the owners and holders of a right in rem to use in a condominium-project building have or have not used the heat supplied. The payment derives from the fact that the building installation is a common part functionally which may not be refused and which was originally designed, hence the payment has to be in proportion to the design heated volume of the individual properties.
On the assertion of the noncompliance of Art. 153, para 6 of the Energy Act with Art. 19, para 2 of the Constitution.
Art. 153, para 6 of the Energy Act reads thus: ,,Any customers in a condominium-project building, who discontinue the heat delivery to the heating units in the properties thereof, shall continue to be considered customers of the heat released by the building system and by the heating units in the common parts of the building.” The provision treats the hypothesis of a customer who for some reason had the heat delivery to the heating units in the properties in a condominium-project building disconnected.
The Ombudsman insists the provision is unconstitutional for it is seen as a barrier to the full refusal on the part of customers to be supplied with heat and to pay for it. The connection of customers in a condominium-project building shall require a resolution of the general meeting of the condominium owners, adopted with an express written consent of two thirds of all owners and holders of a right in rem to use in a condominium-project building (Art. 133, para 2 of the Energy Act).
Given the resolution of the majority of owners and holders of a right in rem to use in a condominium - project building for its connection into the heat transmission network , the Energy Act provides for the disconnection of individual properties if the owners and holders of a right in rem to use in a condominium-project building cease to pay for heat consumption. Heat is no longer supplied to the heating units in the properties as thermostat valves are mounted since Art. 153, para 5 of the Energy Act makes it explicit that the customers in a condominium-project building shall have no right to discontinue the delivery of heat to the heating units in the properties by means of physical disconnection of the said units from the building system. Non-consumption of heat in a condominium-project building which is connected into the heat transmission network is out of the question for all joint owners shall pay their share of the operational costs of the common parts and the building system in proportion to the title.
As already noted , when all the occupants of a condominium - project building share in the benefits , i . e . the heating of the whole building , they shall share in the burdens accordingly , i . e . the payment for the amount of heat for the common parts and of heat released by the building system. Absolute non-consumption in such a building can be considered only in the hypothesis of Art. 153, para 2 of the Energy Act: Where two-thirds of the owners and holders of a right in rem to use in a condominium-project building, who are connected to a subscriber sub-station or to a self-contained branch thereof, do not wish to be considered customers of heat for heating and declare this in writing to the heat transmission company, the company shall be obligated to perform the disconnection as requested within 15 days after the receipt of the application.
The Constitutional Court did not find the challenged legal text to be noncompliant with Art. 19, para 2 of the Constitution. Paragraphs 1 and 6 of Art . 153 of the Energy Act conform to the Constitution prescriptions to protect consumer rights in the field of heat consumption . The building installation is a common part in the meaning of the Energy Act , the Ownership Act and the Condominium Ownership Management Act and all owners and holders of a right in rem to use are considered heat customers and are bound to share in the benefits and burdens arising from the use of the condominium.
The allegation that the service favors the majority of the heat customers since the heat is transported to their properties by the building installation is untrue because the installation is a common part like the roof or the foundations , so the heat released benefits all owners and holders of a right in rem to use in a condominium - project building . Some owners and holders of a right in rem to use in a condominium - project building impose a self - restriction of their consumer rights , however , this should in no way prevent most of the joint owners to use the universal service that heating is and to maintain a comfortable temperature in their properties in the condominium-project building. Such an attitude is in agreement with the Constitution since self - restriction should not be detrimental to the rights and legitimate interests of others (Art. 57, para 2 of the Constitution).
For these reasons the challenge is seen as unsustainable and should be dismissed.
Председател: Евгени Танчев