The unified state standards of holding academic ranks and posts shall be subject to a law. The matter shall not be delegated to a bylaw like a regulation of the Council of Ministers or to the individual higher schools' internal rules.
Drawing on Art . 149, para 1, item 2 of the Constitution in relation to Art . 150, para 1 of the Constitution a case was instituted on 2 June 2010 as 52 Members of the 41 st National Assembly challenged the constitutionality of the following texts from the Act on Academic Staff Development in the Republic of Bulgaria (ASDA) ( DV , No 38/21.05.2010): Art. 1, para 3; Art.2, para 2, item 2; Art. 4, para 3; Art. 5, para 3; Art. 10, para 2; Art. 12; Art. 15, para 2; Art. 17; Art. 18; Art. 24, para 2; Art. 27, para 1; Art. 27, para 4, sentence two; Art. 29; Arts. 24-29; Art. 30; Art. 34; Art. 34, para 5; Art. 34, para 6; Art. 35, para 1, item 2; Art. 35, para 4; § 2 ; § 3 ; § 7 ; § 9, para 1, sentence two and para 2 ; § 10 and § 11.
The Constitutional Court discussed the arguments as presented in the challenge and the opinions submitted in writing on the challenge and in order to rule, considered the following :
1. In their challenge to the Constitutional Court the MPs emphasized that the National Assembly shall not delegate its powers to other state authorities. Specifically, the MPs attacked Art. 1, para 3; Art. 4, para 3; § 2 ; § 9, para 2 and § 10 of the ASDA. The ASDA § 9, para 2 makes it binding on the Council of Ministers to approve the enabling legislation to make provision for the unified state standards of holding academic ranks and posts. The Council of Ministers is the authority that is to approve the rules governing the Arbitration Council with the National Evaluation and Accreditation Agency (NEAA). In the opinion of the MPs some other ASDA texts are noncompliant with the Constitution: these texts allow higher schools and scientific organizations to treat in their rules the various aspects of holding academic ranks or posts: the concrete terms and the procedure of the acquirement of an academic rank or of the appointment to an academic post (Art. 1, para 3 of the ASDA); the recognition of academic titles awarded abroad (Art. 5, para 3 of the ASDA). Further the MPs challenged ASDA texts that let higher schools and scientific organizations incorporate in their rules provisions relating to academic ranks and posts and diverging from those prescribed appropriately in the ASDA (Art. 18, para 2; § 2).
The Constitutional Court ' s is of the opinion that the question of whether the lawmaker shall be free to decide when a matter is to be regulated by a law or a bylaw of the Executive should be answered in consideration of the principle of separation of powers ( Art. 8 of the Constitution ) and of the principle of the state committed to the rule of law (Art. 4, para 1 of the Constitution). On a number of occasions the Constitution spells out matters that are regulated by a law: for instance, the establishment of taxes and determination of the size of state taxes (Art. 84, item 3 of the Constitution) or the approval of the State Budget (Art. 84, item 2 of the Constitution). If this is the case , the National Assembly shall act accordingly and shall not delegate its Constitution - granted powers to other authorities , the Executive being among these . With such an explicit ,,reservation ” of a matter that shall be treated in a law the Constitution puts concrete substance into the formula it has adopted vis -à- vis the separation and balance of powers and the role of the law in a law-governed state. Even when the Constitution does not explicitly provide that a certain matter shall be treated in a law , the National Assembly again is not free to decide as it sees it appropriate , whether the matter concerned could be regulated in a law nor is it free to set the limits of regulation. In doing so the Parliament will have to conform to those two fundamental Constitution principles: the principle of separation of powers (Art. 8) and the principle of the state committed to the rule of law (Art. 4, para 1).
Inasmuch as the Constitution proclaims that the National Assembly shall be vested with the legislative authority ( Art . 62, para 1) it is evident that it is the parliament which has the authority to legislate. The parliament shall not shed this power nor shall it shift the legislation of definite matters onto the Executive branch of power. The shift of the lawmaking function from a Constitution-established authority onto another would tip off the balances and equilibrium between powers. Thus the principle of separation of powers disallows any change or substitution of the Legislature ' s will and furthermore , precludes the possibility for the Legislature to abandon its specific powers and shift them onto other authorities . The transfer of powers from one Constitution - established authority to another would be justified inasmuch as it is provided for by the Constitution which is the one and only authority competent to define the specific parameters of the balances in power. As long as the Bulgarian Constitution contains no provisions to this effect, the conclusion is that it disallows delegated legislation just as it disallows the Constitution-established authorities to abandon the competence that is granted to them.
Then again the judgment of whether a given matter is to be regulated by a law and of the limits of regulation must take into account the circumstance that when a certain matter , owing to its nature , needs to be regulated by a law in a law - governed state , it shall be regulated by a law which shall be passed by the National Assembly accordingly whereas a matter that is not to be regulated by a law shall be regulated by a bylaw.
Next , again in view of the assessment of the division of competences to issue a legal act , the Constitution itself forbids to provide primary legislation in bylaws. Conversely, bylaws provide secondary legislation in the sense that they are passed pursuant to and in the implementation of the laws (Art. 114 of the Constitution), i.e. two cumulative requirements that definitively determine their characteristics. The very nature of a bylaw therefore presets definitive rules that already exist in a law and not rules that are to be created by a bylaw. The law shall be a normative act regulating primarily or on the basis of the Constitution social relations susceptible to durable regulation according to the subject-matter or the subjects (Art. 3 of the Law on the Normative Acts) and as such stands on the top rung of the ladder of normative acts. Hence the conclusion that the legislation must contain comprehensive provisions and that it cannot have a ,,framework form”, as described in the purposes of the ASDA Bill.
The National Assembly is duty - bound to legislate and is disallowed to delegate legislation to other authorities to regulate in essence matters that pertain to law; nor is the Assembly allowed to stay away from the lawmaking process and to shift it onto a bylaw. It is inadmissible for a law to prescribe what rules a bylaw shall contain that neither develop it nor complement it nor give a guideline of the clarification of its texts but authorize the adoption of rules for which the law does not provide. This is dangerous as it creates conditions in which the legislation will be unstable and the rules will change on ad hoc grounds outside the political debate that takes place in Parliament.
Whenever the Legislature delegates the formulation of unified state standards of holding academic ranks or posts or the procedure of acquirement of an academic rank or of appointment to an academic post ( § 9, para 2, sentence two of the ASDA ), it runs counter to the established rules in a law-governed state of the division of regulating powers. The ASDA is called to describe what the unified state requirements are like, to set the limits of their scope and to explicate how they correlate to the higher schools' academic autonomy.
The concept ,,state requirements” is a Constitution-defined concept. The Constitution which uses it in Art. 53, para 5 put a broad sense in it: along with other things these are the laws that are primarily implied in the Constitution. The objective of the Constitution is to define the fundamental issues of state governance and to set the base of legal regulation. The objective of the law is different and is to regulate a certain area of social relations and not to give guidelines. Therefore the regulation is not uniform and shall not be automatically transposed. So the ,,unified state requirements ” of § 9, para 2 , sentence two of the ASDA is in contravention of the principle of the state committed to the rule of law (Art. 4, para 1 of the Constitution).
Concurrently the Constitutional Court assumed in the context of the stated considerations that the greater part of § 9, para 2, sentence two of the ASDA is not in contravention of the Constitution inasmuch as it regulates matters pertinent to the implementation of the Act on Academic Staff Development in the Republic of Bulgaria as for instance the procedure of admission and training for a doctor's degree in Chapter Two of the ASDA and the teaching workloads in Art. 24, para 3 of the ASDA. It is a matter that the ASDA enabling rules develop further in addition to the details that it will make clear in view of the consequences of the rules that the ASDA contains.
2. The MPs who support the challenge insist that certain ASDA texts are unconstitutional as they grant the higher schools and scientific organizations the power to regulate some aspects of the relations that are involved in academic ranks and posts. The rules of higher schools and scientific organizations are binding on their teams and the objective that these rules have is to organize different aspects of their activities. The Constitution itself encourages such an approach inasmuch as it recognizes the higher schools' right to academic autonomy (Art. 53, para 4).
However, Art. 1, para 3 and Art. 4 para 3 of the ASDA are noncompliant with the Constitution for it is inadmissible for the challenged act to grant the higher schools and scientific organizations the right to approve working regulations to regulate the key elements of relations that are associated with the holding of academic ranks and posts. Essentially this is delegation of legislation which is inadmissible under the existing Constitution. There is no reason why the Legislature should not let higher schools and scientific organizations put additional requirements in their working regulations once the primary legislation is in place. Other specific requirements regarding the in-house organization and activities of the relevant educational and research institutions may be formulated on the basis of legal norms. However, before the ASDA delegates to the higher schools and scientific organizations to incorporate such texts into their rules of holding academic ranks and posts, in view of the matter that it treats, viz. the definition of conditions of academic staff rights, it shall lay the legal foundation on which the working regulations are to be built , with recognition of the specifics of science or the domain of science in which the staff works. Viewed from that angle the general delegation of Art. 1, para 3 of the ASDA is constitutionally inadmissible.
On the other hand , it is inadmissible to link up the regulation on holding rights , particularly conditions that must be subject to a stable regulation and action countrywide , to the regulations of higher schools that enjoy the right to academic autonomy granted by Art. 53, para 4 of the Constitution. Inasmuch as legal consequences are implied that hold true for all higher schools and scientific organizations, it is evident that the working regulations are not capable of creating such a legal frame.
Art. 4, para 3 of the ASDA provides for the conditions and procedure of the sessions of the law-established scientific juries to be treated in the working regulations of the higher schools and scientific organizations. As the scientific juries' decisions establish rights, there shall be unified requirements concerning their activities. The more so that these activities are subject to control which is to see that the reality is what the law prescribes and the assessment shall be one and the same for the identical hypotheses rather than vary from case to case depending on the working regulations.
It is to be inferred that the Constitution principle of the state committed to the rule of law will not tolerate a matter which is to be treated in a law to be left to working regulations to deal with it. Hence the Constitutional Court's conclusion that Art. 1, para 3 and Art. 4, para 3 of the ASDA are unconstitutional.
It is intolerable for the Constitution that the National Assembly should shift the responsibility for academic staff development in the Republic of Bulgaria onto higher schools and scientific organizations concurrently.
The MPs challenged the constitutionality of § 2 of the ASDA which allows the higher schools and scientific organizations to appoint a higher odd number of scientific jury members while keeping the law-established proportions. Legally this is equally valid for a scientific jury which rules on an appointment to an academic post and for a scientific jury which evaluates a dissertation thesis though the legal status of the former and of the latter is not identical. The purpose of § 2 of the ASDA is to authorize an exception to the rule. Thus, as the Academic Staff Development Act determines the requirements for a doctor's degree, including the requirement of the number of the scientific jury members, it lets higher schools and scientific organizations link up the entitlement to identical rights to more severe requirements. This has to be so as in the lawmaker's view an applicant will be entitled to rights that, in the wording of Art. 5, para 2 of the ASDA, the scientific ranks are “recognized countrywide” providing the scientific jury members “outnumber” the requirement fixed. Evidently in this case regulation is of a nature whereon the number of members of the decision-taking body is legally irrelevant. Thus it is beside the point to ask whether the determination of the number of members of a collegiate body which the law authorizes to grant rights is a problem of the legislation alone.
The challenge of constitutionality extends also to Art. 24, para 3 and Art. 29, para 1, sentence 2 of the ASDA. The two texts look like homogeneous but in fact are very different from one another in subject-matter. The former text reads that the working regulations of higher schools and scientific organizations shall incorporate rules of the academic staff's teaching and research workloads and generate conditions to proceed with a competition. The latter text reads that the working regulations of higher schools and universities shall provide their own compulsory conditions for the academic position of ,,professorship”, that is conditions to proceed with an appointment. In the Constitutional Court's view both texts pertain to in-house organizational matters of higher schools and scientific organizations. The solution opted for in the challenged act is in the spirit of academic autonomy and therefore is compliant with Art. 53, para 4 of the Constitution.
Regarding § 10 of the ASDA, it sets a deadline for the adoption of the working regulations of higher schools and scientific organizations and names the body which is to adopt them. Evidently the text is neglectful of the fact that the higher schools working regulations are approved by their general meeting. Specific aspects of academic autonomy are infringed on in this way as first, under Art. 53, para 4 of the Constitution, higher schools enjoy autonomy and second, mutually exclusive rules are formulated in contravention of Art. 4, para 1 of the Constitution.
3. The MPs insist that Art. 5, para 3 of the ASDA is unconstitutional. The text reads that scientific titles awarded abroad shall be recognized by the higher schools and scientific organizations in the Republic of Bulgaria in a procedure which is established by their regulations and which is compliant with the law and the international treaties to which the Republic of Bulgaria is a party.
In the ir challenge the MPs insist that the recognition of scientific titles awarded abroad shall be assigned to a body which is unique in the state and shall be based on identical criteria .
However , Art . 5, para 3 of the ASDA is not inconsistent with Art . 4, para 1 and Art . 53, para 6 of the Constitution . The legislating authority thought that higher schools and scientific organizations are competent enough to find their bearings and deal with the recognition of scientific titles awarded abroad , specially with the accreditation of foreign higher schools and scientific organizations in the field of scientific titles , with the accreditation of the respective doctorate programs, the admission and the defense procedure for a dissertation, etc. Alongside, Art. 5, para 3 of the ASDA provides that these rules shall be compliant with the law and with the international treaties to which the Republic of Bulgaria is a party. The ASDA left unanswered the question of the rank of regulation, the regulation parameters, the provisions of laws to which the regulations of higher schools and scientific organizations must conform. Specifically, they will have to answer whether the ASDA and the enabling legislation provide for a procedure of holding an academic rank in the Republic of Bulgaria and whether the dispute resolution procedure should apply vis-à-vis the procedures of the acquirement of academic ranks outside Bulgaria to eliminate privileges or restrictions. The conclusion that Art. 5, para 3 of the ASDA invites is that its text is not sufficient to pronounce it unconstitutional. If among the normative acts that Art. 5, para 3 of the ASDA refers to there is a piece with the rank of law, it shall be checked for compliance with the Constitution providing the Constitutional Court is approached by the competent authorities as per Art. 150 of the Constitution.
4. The MPs challenged the constitutionality of Art. 10, para 2 and Art. 27, para 1 of the ASDA, specifically the part in which they read that reviews, opinions, dissertation papers and summaries of works shall be published in Bulgarian and in English. The MPs think that the requirement to publish documents in a foreign language brings in inequality and is a breach of Art. 6 of the Constitution, However, the requirement has a different emphatic point: the question is whether the preference for a foreign language creates a privilege and not that the lawmaker availed of the opportunity afforded by Art. 36, para 3 of the Constitution. Such a solution is to be observed in some other pieces of legislation that require that official documents be written in Bulgarian and in English. The purpose of Art. 10, para 1 and Art. 27, para 2 of the ASDA is clear: it is to give an opportunity for a wider integration of Bulgarian scientists into the world scientific community and in the European and global scientific discourse. Moreover, the requirement is posed only to documents in a certain phase of the academic post appointment procedure or of the thesis defense procedure providing the thesis is written in Bulgarian. No doubt, the introduction of such a rule will make procedures more costly and will require more effort on the part of applicants aspiring to an academic post or rank and on the part of jury members, higher schools and scientific organizations. No doubt, those who have good command of English will have an advantage over all others. In the Constitutional Court's view the publication of materials in English, in addition to Bulgarian, is useful . However, the public need is not such to justify unequal treatment within the academic community or the ,,academic staff” as the legislation prefers to term it. The more so that the very nature of some disciplines, the humanities in particular, most of the social sciences, in general the studies on the national identity, culture and economy make such a restriction of the choice of communication unacceptable to them to a degree that varies. Moreover , the different domains of science have time - honored traditions of language communication and it is not up to a law to intervene in the choice of the language in which it is to be communicated. Further, this specific piece of legislation can be implemented without breaching the Constitution's Art. 6, para 2. As science is the emanation of the free and creative spirit of quest, such prescriptions would largely fit into the specifics of the matter that they regulate if they prescribed to publish the materials that go along with an academic post appointment or an academic rank acquirement in several selected foreign languages.
5. The MPs challenged the constitutionality of Art. 2, para 2, item 1 and Art. 12 of the ASDA. The former makes the ,,doctor of science” a scientific rank and in this way puts it into its ,,orbit”; the latter describes the conditions to be met for this rank. The MPs who support the challenge argue that since the acquirement of this scientific rank is irrelevant to an appointment to an academic post, by doing so the lawmaker puts doctors of science in a disadvantaged position over the ,,doctors” who have acquired that scientific and educational rank, termed so by Art. 2, para 2, item 1 of the ASDA, unlike other pieces of legislation.
Evidently, the ASDA treats the different academic ranks differently. However, the difference in treatment is reversed and not commensurate: those who have to meet harsher and stricter requirements do not become entitled to any rights unlike those who have to meet softer requirements and gain rights. The Academic Staff Development Act is the piece of legislation called to regulate social relations in the Republic of Bulgaria in the domain of academic ranks and does not associate the rank ,,doctor of science” with any chance of certain conduct or an element of the holder's legal status that this rank protects. While the ASDA poses requirements to the acquirement of the ,,doctor of science ” rank , it does not recognize any legal interest of the persons who will acquire it. It is not just a matter of a definite legal consequence, for instance the importance of the ,,doctor of science” rank in academic career or the appointment to an academic post. Aspiring to eliminate a definite legal effect from the acquirement of the ,,doctor of science” academic rank, the challenged act leaves a legal figure that is devoid of any legal effect and does not reestablish the grounds for extra payment which is supplementary to the salaries of persons who are holders of academic ranks and which existed before the abolition of the Act on Academic Ranks and Titles.
Art. 23 of the Constitution reads that the State shall establish conditions conducive to the free development of science. Though the text is general, it has a definite meaning: anything that should promote science must be put into effect. It is the development of science that leads to the ,,doctor of science” rank. However, when the legislation fails to give legal benefits to a status that is recognized in science, it is counterproductive to Art. 23 of the Constitution.
As regards Art. 2, para 2, item 2 of the ASDA, the Constitutional Court dismissed the challenge of its constitutionality as unsustainable. The text in question simply reads that there exist two academic ranks: ,,a doctor” and ,,a doctor of science”. The said ranks have existed for e very long time; they are well established in the academic community with respect to the development of science and education and correspond to the requirement that Art. 23 of the Constitution poses. Over the years some amendments were made but their existence and significance in science was never questioned. As previously, the ,,doctor” is termed as an educational and academic rank ( erroneously termed as a scientific and educational rank in the ASDA), so it is only ,,the doctor of science” that is determined as an academic rank to the full extent.
6. The MPs challenged the constitutionality of Art . 15, para 2 of the ASDA which puts up a requirement of a primary contract of employment for holding an academic post . In their view the text in question restricts the Constitution - sanctioned right to work ( Art . 48 of the Constitution ) and brings in inequality ( Art . 6 of the Constitution ) as it divests citizens of opportunities that the Labor Code affords them.
In the Constitutional Court's view the imperative prescription of holding an academic post on a primary contract of employment is conceived as restriction of rights. The Constitutional Court has a history of cases in relation to Art. 6, para 2 of the Constitution. Restrictions or privileges on grounds that are pointed out in this text shall be intolerable. There exist domains of equality of citizens before the law where it shall be inadmissible to restrict rights or to grant privileges. It should be made clear though that the Constitution enumerates criteria of discrimination. At the same time the legislation and the general Antidiscrimination Act introduce criteria that are not to be found in the Constitution. However, Art. 15, para 2 of the ASDA is not among the grounds in Art. 6, para 2 of the Constitution. The Constitutional Court decisions have , time and again , pointed out that it is intolerable to establish a definite regime to a category of subjects on grounds other than those enumerated in Art . 6, para 2 of the Constitution . The Constitution refers to a number of cases when privileges are granted or rights are restricted. However, the introduction of such criteria is not a matter of discretion and should have justification. As the Constitutional Court notes, this introduction is imposed by a public necessity or for the sake of the principle of equality before the law. The restriction of rights on the basis of criteria other than those in Art . 6, para 2 of the Constitution shall conform to the principle of the equality before the law that is explicitly put in the same text of the Constitution and in its Preamble. Inasmuch as the equality before the law is a Constitution-granted right that citizens enjoy, the Constitutional Court has repeatedly pointed out that a deviation, when such is provided for, will have to be serious in a sufficient measure.
Among the most important characteristics of the principle of equality before the law is the obligation that it gives to the Legislature to treat citizens equally within the framework of legislation. The question is whether citizens can be treated differently with regard to the right to work if a certain policy needs to be implemented in some social sector. If the latter is assumed, evidently needs must be serious in a sufficient measure and the restriction shall not be in excess to what is required. Furthermore, the restriction of fundamental rights, whenever it is admissible, shall not be of indefinite duration. The Constitutional Court thinks that it is solely considerations of constitutional nature that can justify a restriction of the Constitution-enshrined rights of citizens. The Constitution declares it unambiguously that the fundamental civil rights shall be inalienable (Art. 57, para 1) and admits restriction by way of exception while it mentions the rights that shall not be curtailed (Art. 57, para 3). The position that the Constitution takes is, therefore, that the restriction of rights shall conform to Art. 57 of the Constitution. On the other hand, when the Constitution proclaims the equality of citizens before the law as a principle, then there will be objectives that will fail to give a cogent justification to the restriction of rights and the objectives that will do it will have to be of the nature that the Constitution accepts as grounds for the restriction of rights. Specifically with regard to the objectives of better standard of education or of guaranteed stability of employer-employee relations, it should be noted that they have none of the features and weight of justifications with which the Constitution associates a possible restriction of rights. Such objectives are rather an expression of long-term government policies. For these reasons the Constitutional Court pronounced Art. 15, para 2 of the ASDA unconstitutional.
7. In their challenge the MPs claimed that there exist contradictions in terms and ambiguities between Art . 15, para 2 and the group of Art . 17, Art . 18, para 3, Art . 24 , para 2 and Art . 29 of the ASDA inasmuch as they give mismatching grounds to enter into relations of employment . This is not in tune with the principle of the state committed to the rule of law. The principle of the law-governed state requires that the Legislature should not pass pieces of legislation that exclude one another.
However , the Constitutional Court is not competent to judge whether one piece of legislation complies with another one ; nor is it competent to judge whether the provisions in one and the same piece of legislation are matching. On the other hand , it is important to note that jurisprudence developed its own tool to clear up ambiguities and contradictions and this tool is the institute of interpretation . If a legal provision is ambiguous and contradictory, the ambiguities and the contradictions are to be cleared up by means of the application of some of the established methods of interpretation and the results that the interpretation leads to (Art. 44 ff of the Law on Normative Acts). This is exactly what the Constitutional Court does when it interprets the Constitution (Art. 149, para 1, item 1). It is erroneous therefore to insist that ambiguities or internal contradictions of the texts of a certain law per se automatically make it unconstitutional on the grounds that they violate the principle of the state committed to the rule of law. The ambiguities or contradictions must be serious enough either to question the fitness of this law to regulate the social relations it is called to or else to contain provisions that exclude one another.
The constitutionality of Art. 17 of the ASDA is challenged. Such a text is new in the Bulgarian legislation. It provides that the academic post ,,assistant” shall be subject to appointment under a contract of employment. This puts an end to a longtime practice of competition as a tool of recruitment. It is up to the legislating authority to decide on the best option. The decision shall not be checked for compliance with the Constitution.
Regarding the requirement under Art . 17 of the ASDA for concluding this contract of employment for a period of fixed duration against the rule of Art . 15, para 2 of the ASDA and the question as to how it will fit into the general regulation of contracts for a fixed term under the Labor Code, including the duration, the Constitutional Court is not competent to rule since it does not check one piece of legislation for compliance with another.
The Constitutional Court dismissed as unsustainable the challenge of the constitutionality of the ASDA Art . 18, para 1. The text referred to introduced the requirement to hold the academic rank of ,,doctor ” in order to be eligible for the academic post of ,,senior assistant”. The ASDA thought such a decision was required and acted accordingly.
8. Art. 18, para 1 of the ASDA reads that the applicant shall hold the academic rank ,,doctor” in order to be eligible for the academic post of ,,chief assistant”. At the same time Art. 18, para 2 of the ASDA gives freedom to ,,the medical universities or schools and the university hospitals, the higher schools of art and sport or faculties, the military schools and the higher schools with the Ministry of Interior” to judge whether their regulations should derogate the requirement in question. Such an approach will benefit certain higher schools that are granted the privilege to judge whether to incorporate into their regulations a requirement that the challenged piece of legislation poses to all others. The requirements posed to be eligible to hold the academic post ,,chief assistant” vary as vary the definitions in two ASDA texts.
The claim that the exception under Art . 1, para 2 of the ASDA is necessitated as the teaching staff in the higher schools listed there needs excellent professional qualification and experience given the specifics of the subjects taught , is unacceptable for the purpose of the acquirement of the educational and scientific rank ,,doctor ” is an expression of a higher qualification in each domain of science and education . It is true that in some higher schools the teaching staff is occupied with activities other than research and teaching . If the nature of the activity justifies special requirements to hold the academic rank, this should be equally valid for all academic posts and not just for a select few. Suffice it that the challenged piece of legislation provides for holding an academic rank in the higher schools of art and sport. What distinguishes these schools is that the arts and the sports require the transfer of skills to others. Next the specifics of a scientific domain cannot justify the derogation of the rule that only persons who hold the educational and scientific ranks ,,doctor” shall be eligible to hold the academic post ,,chief assistant”.
Finally , the argumentation that some higher schools have a broader scope of activities in addition to research and teaching and engage in other activities cannot be a justification either for a different legal position of part of their academic staff as compared to the other higher schools. All higher schools are opened with one and the same objective in mind: to teach the respective subjects and to advance science and R&D. Any field of science relates to and meets certain practical needs. Therefore it is not justified to set special rules to some of the academic staff.
Therefore, Art. 18, para 2 of the ASDA is inconsistent with Art. 6 of the Constitution.
9. The group of MPs maintains that Articles 24, 25, 26, 27, 28 and 29 of the ASDA are unconstitutional as they allow the academic posts ,,professor” and ,,associate professor” in the absence of routine scientific career and by doing so bring in inequality (Art. 6 of the Constitution). The provisions challenged pertain to the terms and procedures leading to academic posts. The reform that the said piece of legislation carries out is inspired by the idea to abolish the scientific titles ,,professor” and ,,associate professor” that existed in the legislation that was abolished and to replace them with identical terms that describe a completely new system of posts in the scientific hierarchy where the titles ,,professor” and ,,associate professor” have legal validity only as posts in a concrete higher school or scientific organization but cease to signify personal status. Accordingly, the rules of the requirements to hold an academic post ,,belong” to the regulations of higher schools and scientific organizations whereas the discussed piece of legislation is to set the broader frame. However, the challenge insists that the restriction of the legal regulation solely to a requirement to present scientific works, studies, projects and to demonstrate achievements to qualify for a ,,professor” or ,,associate professor” preconditions inequality.
The Academic Staff Development Act puts in place a well structured system of academic posts that is valid for all higher schools and scientific organizations . As regards the requirements to be met to qualify for each post thus established , the challenged piece of legislation comes up with general standard texts rather than with a differentiation that is adequate to the system. These are Art. 24, para 1, Art. 26, para 1 and Art. 29, para 1 of the ASDA. In this way the challenged piece of legislation refuses to differentiate the requirements to be met in order to be eligible for an academic post in the hierarchical ladder and thus retreats from the rule to treat different things while it does not rule out a situation where one and the same requirements are met on a case by case basis but the results vary from case to case.
The piece of legislation dealt with seeks to regulate matters regarding academic ranks and posts. The determinants for these relations in the sense that they shape up their substance and specifics are the conditions in which rights will be acquired, exercised and withdrawn. The Academic Staff Development Act ignores this matter and delegates its legislation. Art. 26, para 1 and Art. 29, para 1 of the ASDA provide for the presentation of materials and documents but do not explain what requirements are to be met to be a ,,professor” or an ,,associate professor”. The purpose of these academic posts, as the ASDA terms them, is hardly the possession of a contract of employment with a higher school or with a scientific organization. This is not what determines the position of these people in society. It is natural to expect that they should present scientific works, implement R&D projects, conduct tutorials for postgraduates who work to attain a doctor's degree, etc. and when the challenged piece of legislation mentions just that, in fact it ,,runs away” from the essence of the regulation. The idea to let these requirements evolve into unified state standards and regulations of higher schools and scientific organizations may materialize providing the Academic Staff Development Act contains adequately categorical provisions. Therefore, the ASDA must define the requirements for holding an academic post and it is on this basis then that thought may be given to the specific criteria and that within the framework of associated domains of science.
Regarding the provisions that deal with the procedure of holding an academic post, there things are different. Art. 26, para 2 and Art. 29, para 2 of the ASDA definitively provide for such a procedure to hold a higher academic post that will ensure stricter assessment of the abilities for science. The rest of the texts in the ASDA Section III of Chapter Three that are challenged are relevant only in the context of these two texts, serve them and stick to their philosophy.
10. The challenge maintains that inasmuch as Art . 27, para 4, sentence two of the ASDA makes it binding on the Faculty Council or the Scientific Council to rule on the jury ' s nominations within a month reckoned from the date on which the list was written and the date on which it was received , it is inconsistent with the principle of the state committed to the rule of law as it makes different conjectures possible. Apparently, an ambiguous text will be interpreted, including by corrective interpretation and in the absence of regulation, the ambiguity will be overcome by means of legal analogy or analogy by law. As has been made clear, a contradiction or a bad wording of a legal text does not automatically lead to the conclusion that the principle of the state committed to the rule of law is violated. Accordingly the Constitutional Court found that there was no contradiction between Art. 27, para 4, sentence two of the ASDA and the Constitution.
11. The MPs claim that the way in which the ASDA Art. 30 and Art. 34 that they challenge provide for the control exercised by the State on the acquirement of academic ranks and on the appointment to academic posts is inconsistent with Art. 53, para 6 of the Constitution. They give as a proof the circumstance that the control exercised by the Minister of Education, Youth and Science is based on a statutory act whereas the regulation itself is an abdication on the part of the State from its Constitution-assigned obligation to control the recruitment and career development in science.
Art. 53, para 6 of the Constitution makes it binding on the State to exercise control over all higher schools. This text is set to achieve a definite objective, namely, to provide the legal grounds for the State to be committed to policies in the field of education and science. In particular, the Constitution text reserves a specially defined form for the involvement of the State in that domain of public life. The control that the text refers to evidently implies a competence that is different from the law-given competence to definite State authorities. The existence of such a text in the Constitution shows that the State should be expected not just to propose regulations in the field of education and science but also it involves the State, in a specific form, in the management of this sector of public life. Alongside , the Constitution is aware that given the nature of the matter concerned , such an involvement must have a specific meaning and parameters . The control that the State exercises over higher schools will have to be cognizant of the fact that the Constitution itself guarantees them academic autonomy ( Art . 53, para 4). Control in the meaning of Art. 53, para 6 of the Constitution shall not restrict academic autonomy whereas academic autonomy per se does not preclude State-exercised control.
Art . 30, para 1 of the ASDA makes control over the acquirement of academic ranks and on the appointments to academic posts a scientific policy trend and vests it in the Minister of Education, Youth and Science. Art. 53, para 6 of the Constitution says nothing about which state authority is to exercise control over the higher schools and over their activities too. Evidently this matter was left to the Legislature. Regarding the appointments and efficiency of the legal solution, the Constitutional Court continuing practices maintain that these are not subject to check for compliance with the Constitution. Therefore the legal solution to vest control over academic ranks and posts in the Minister of Education, Youth and Science does not run counter to the Constitution.
The Constitutional Court disagreed with the MPs' theory that the grounds for control under Art. 30, par 1 of the ASDA are given in a statutory act. It is a fact that the challenged piece of legislation names the authority to exercise control over the matter to be subject to control. The problem that Art. 30, para 1 of the ASDA raises is not the grounds but the scope of control that the State exercises over how academic ranks are acquired and how appointments to academic posts are made. The Act confines the State's powers of control to the correspondence with the unified state standards and leaves out the violations of the concrete requirements and procedures of acquirement of academic ranks and appointment to academic posts, as per Art. 1, para 3 of the ASDA. The Legislature granted freedom to the higher schools and scientific organizations to standardize in their regulations some aspects of these procedures while it forbids the Minister of Education, Youth and Science to exercise control over those regulations. Such a legal solution as in Art. 30, para 1 of the ASDA is discordant with Art. 53, para 6 of the Constitution inasmuch as it makes it binding on the State to exercise control over the higher schools' activities whereas the acquirement of academic ranks and academic titles according to the philosophy of the Act on Academic Staff Development in the Republic of Bulgaria, unlike the abolished legislation, is the matter that they must be involved in a most straightforward way. The restriction of the control by the State on abidance by the unified state standards should not be excused with the desire that the State should respect the higher schools academic autonomy. Academic autonomy should not be the excuse to disregard rules that were created by the higher schools themselves and the State should not abdicate from its Constitution-vested function, upon the excuse that the compliance with the rules that the higher schools have established is a ,,domestic” issue.
The restriction that Art. 30, para 1 of the ASDA introduced must be dismissed on further grounds. The Act on Academic Staff Development in the Republic of Bulgaria poses definitive requirements to holding academic ranks and academic posts and it is irrelevant then, given Art. 53, para 6 of the Constitution to refuse to the Minister the authority to exercise control over these legal provisions enforcement.
In general , the restriction of the scope of control over academic ranks and academic titles that acquired special importance in the context of the decentralization of these procedures in keeping with Art . 1, para 2, item 1 of the ASDA , is, in the opinion of the Constitutional Court, an inadmissible negligence of an obligation that Art. 53, para 6 of the Constitution vests in the State. Therefore, Art. 30, para 1 of the ASDA should be pronounced unconstitutional.
12. According to Art. 34, para 5 of the ASDA the Arbitration Council decisions regarding this piece of legislation shall not be subject to judicial control. The Act on Academic Staff Development in the Republic of Bulgaria vests in the NEAA Arbitration Council definite functions that make it look like a judiciary body. To be more concrete, being an independent and standalone body, the Arbitration Council resolves legal disputes whenever approached and in compliance with competitive proceedings. The Constitutional Court has previously pointed out that to bring a legal dispute to a body other than the judicature for a final solution is intolerable if Art. 119, para 1 of the Constitution is to be observed.
The same arguments hold true of Art . 35, para 4, sentence two of the ASDA inasmuch as it pronounces the final NEAA Arbitration Council decisions about certain grounds of discharge from an academic post. This creates a rule that the Constitution rejects as it rules out the adjudicating competence of the judicature and for that reason is unconstitutional as well.
While a legal dispute may be brought to a non - judicial body to settle it , the way to the court shall remain open .
The challenge insisted that Art . 34, para 5 and Art . 35, para 4 of the ASDA were discordant with Art. 120, para 2 of the Constitution. In the Constitutional Court ' s opinion the ASDA provisions cannot lead to a categorical conclusion about the NEAA Arbitration Council ' s legal status , and to be more precise , that the NEAA Arbitration Council is an administrative body and its acts are individual administrative acts. Hence the assumption that the challenged texts preclude judicial control over administrative acts cannot be supported.
13. The MPs believe that Art . 34, para 6 of the ASDA is unconstitutional. The text provides that cases that are not covered by the arbitration procedures, fees included, shall be subject to the NEAA Arbitration Council Rules. The Constitutional Court sided with the MPs on that point. Art. 60, para 1 of the Constitution explicitly states that taxes and duties shall be established by law and that this requirement is one of the pillars of the state committed to the rule of law. Art. 34, para 6 of the ASDA comes in direct conflict with that Constitution text. Art. 34, para 5 makes it clear that it is a matter that it left unresolved and leaves it to a statutory act inasmuch as according to § 9, para 2 of the ASDA, the Arbitration Council Operating Rules determine the size of the fees as per Art. 34 of the ASDA, are approved by the Council of Ministers.
The interpretation of Art . 84, item 3 and of Art . 60, para 1 of the Constitution in parallel shows that a differentiation must be made between ,,the establishment” of taxes and duties and the “determination” of their size. Repeatedly the Constitutional Court has pointed out that the establishment of taxes and duties and the determination of their size is an exclusive power of the National Assembly. As regards the determination of the size of the fee which in fact is the remuneration of a service delivered and as such is incomparable to Government or municipal proceeds, this could be left to the Executive. Art. 34, para 6 of the ASDA does not differentiate between the two hypotheses.
14. In addition to the challenge of the Constitutionality of Art . 34, para 5 and para 6 of the ASDA that the Constitutional Court pronounced unconstitutional , the MPs challenged the constitutionality of Art . 34 of the ASDA . They insist that it disagrees with Art. 53, para 6 of the Constitution. Art. 34 of the ASDA contains rules of procedure before the NEAA Arbitration Council. In the Constitutional Court ' s view it is the establishment of such an Arbitration Council that is a problem rather than the rules of procedure by themselves. As concerns Art. 34 of the ASDA, the Constitutional Court is not supposed to rule on the compliance of the rules in one piece of legislation with the rules in another piece.
15. Further the MPs challenged the constitutionality of Art . 35, para 1, item 2 of the ASDA . The text introduces special grounds on which a person is to be discharged from an academic post providing he has defended a dissertation or has been selected for an academic post in a procedure where a ,,member of the jury or of a faculty council/scientific council has given an opinion that proceeds from a crime that has been ascertained and a final verdict has been pronounced”. The wording is not precise, yet the idea of the text is clear. Specifically, it becomes possible to discharge from an academic post, i.e. to terminate a contract of employment on the grounds of a crime committed by someone other than the occupant. A fundamental principle in Bulgarian law is that of personal fault. It is intolerable to punish a person when the guilt lies with someone else. In a state committed to the rule of law fault is personal and it is intolerable to punish a person when the guilt lies with someone else. Therefore item 2 of Art. 35, para 1 of the ASDA that comes in conflict with Art. 4, para 1 of the Constitution is to be pronounced unconstitutional.
16. In their challenge the MPs point out that Art. 35, para 4 of the ASDA is unconstitutional on the grounds that they cite for Art. 34, para 5 of the ASDA – the expulsion of judicial control. Art. 35, para 4 reads: ,,The Minister of Education, Youth and Science or the injured party shall be free to approach the Arbitration Council with an appeal against the discharge within 30 days. The Arbitration Council shall pronounce its final decision within one month.” The MPs presented arguments that pertained to the second sentence alone inasmuch as it expresses the same idea of Art. 34, para 5 of the ASDA, however, it is the whole text that is challenged as unconstitutional.
In the Constitutional Court ' s opinion , the challenge of the constitutionality of the first sentence of the text is unsustainable . With the freedom granted to the Minister of Education , Youth and Science to appeal against the ordinance by which a higher school principal or a scientific organization chief strips of an academic rank or discharges a member of a jury , the text in fact recognizes the State's right to control over the activities of the higher schools and scientific organizations. However, the second sentence of Art. 35, para 4 of the ASDA comes in conflict with the Constitution on account of the considerations that were presented with regard to Art. 34, para 5 of the ASDA.
17. Further , the MPs challenged the constitutionality of § 3 of the ASDA. The text provides that autonomous colleges shall not involve in a procedure for academic posts appointments; the procedure shall be left to the higher schools or scientific organizations that conduct training courses in the same domain on the basis of a contract. The text challenged is seen as discordant with Art. 53 of the Constitution owing to the circumstance that it mixes up the higher schools public and private interest. Apparently the autonomous colleges are higher schools in the meaning of the ASDA as academic posts are held in them. There is no reason to restrict their academic autonomy that the Constitution (Art. 53, para 4) grants to the higher schools. As far as the claimed conflict of interest which is bred in this way, it is a problem that the Legislature should see how to solve whereas the constitutional control is not directly involved.
18. The MPs claim that § 7 of the ASDA conflicts with an essential element of the principle of the state committed to the rule of law , viz ., legal certainty. The text provides that the scientific titles awarded under the abolished Act on Scientific Ranks and Scientific Titles shall be replaced by academic posts in the higher school or scientific organization and gives the relevant instructions. The problem , as the MPs see it , is that the text infringes on the legal status of persons who have been awarded the scientific title ,,senior assistant”, respectively ,,research associate 2 nd degree” and ,,chief assistant”, respectively ,,research associate 1 st degree” but who do not hold the ,,doctor” scientific degree . Moreover , the MPs think that such replacements come into conflict with legal certainty .
The lawmaker ' s idea is to do away with the difference between ,,a scientific title ” and ,,a scientific post ” that existed in the abolished piece of legislation and to introduce a new concept , ,,an academic post ”, to correspond, as the provision shows, to the former ,,scientific posts”. However, it becomes apparent immediately that § 7 of the ASDA does not recognize what made the procedure that used to exist in the abolished piece of legislation different and that it seeks to redraft. In the terminology of the abolished Act of Scientific Ranks and Scientific Titles and its implementing rules ,,a senior assistant” and ,,a research associate 2 nd degree” are scientific posts and not scientific titles as defined by § 7 of the ASDA. The scientific titles used to be ,,an assistant” and ,,a research associate” (Art. 3 of the abolished Act on Scientific Ranks and Scientific Titles).
§ 7, para 1 and para 2 of the ASDA are designed to automatically transform the scientific titles awarded under the abolished piece of legislation into academic posts and to abolish legally established notions with a definite substance and recognized meaning. There can be no doubt that in such a situation the transformation of the status quo should be effected in a way that will not affect acquired rights. Since ,,an academic post” is not equivalent to ,,a scientific title” that existed in the abolished piece of legislation, the legislating authority explicitly provided (§ 5, para 2 and § 5, para 3 of the ASDA) for the non-withdrawal of rights of persons on who scientific titles were awarded under the abolished piece of legislation. Specially with respect to the contract of employment, § 7, para 3 of the ASDA explicitly provides that all who are members of the academic staff shall keep their contracts of employment with the respective higher school or scientific organization and that relations of employment entered into under the abolished piece of legislation shall not be terminated. The problem arises, however, as the scientific titles under the abolished Act on Scientific Ranks and Scientific Titles affect the personal status, among other things. The ASDA makes no provision to this effect and automatically transforms the scientific titles awarded under the abolished piece of legislation into academic posts. However, this transformation affects acquired rights and therefore must be effected in a way that will not withdraw rights with the explanation that ,,an academic post ” is not equivalent to the abolished “scientific title”. By doing so § 5, para 3 of the ASDA provides for the existence of two categories of professors and associate professors. Specifically, the scientific titles ,,professor” and ,,associate professor” awarded under the abolished piece of legislation are valid countrywide whereas the academic post, according to the challenged piece of legislation, is ,,pegged” to a specific higher school or scientific organization. The scientific rank acquired under the abolished piece of legislation becomes irrelevant if the occupant moves to another higher school or scientific organization. On the other hand, given the possibility to become ,,a chief assistant” without holding a scientific rank under the abolished piece of legislation, now the new piece of legislation affects their rights as the chief assistants are automatically transformed into ,,assistants”. For this reason the Constitutional Court pronounced § 7, para 1 and para 2 of the ASDA unconstitutional .
19. In their challenge the MPs insist that § 9, para 1, sentence two of the ASDA should be pronounced unconstitutional . According to this text a procedure is considered to be opened under the Act on Scientific Ranks and Scientific Titles if the reviewers are appointed or if the fee is paid up. The text defines the cases of the status quo ante to be completed under the Act on Scientific Ranks and Scientific Titles that is abolished and superseded by the Act on Academic Staff Development in the Republic of Bulgaria . The MPs think that this text breeds inequality and discrimination for the ,,players” in the procedures that are already under way and spoils the legal certainty. It is true that the Act on Academic Staff Development in the Republic of Bulgaria does not treat each procedure that was initiated under the abolished piece of legislation as a status quo ante case. However, as it seeks to close down the Higher Accreditation Commission and to establish a new system of bodies that will award academic ranks and academic posts, the ASDA did not identify any essential differences in the development of the system as long as the bodies in the abolished piece of legislation had to make their first declaration of intention, respectively their statement is involved in view of the payment of the respective fee
Regarding the applicants in a competition which is currently being held for the attainment of an academic rank and whose deadline of submission of application was beyond the date on which the Act on Academic Staff Development in the Republic of Bulgaria entered into force, they are in a position which is different from that of the applicants eligible for competition and there exists no reason to claim discriminatory treatment.
20. § 11 of the ASDA vests the National Evaluation and Accreditation Agency with the power to draw up a National List of Jury Members and Arbiters within three months of the Act's entry into force. Other ASDA texts pose the requirements to prospective entrants into the National List and to the composition of the juries. These requirements serve as guarantors that the holders of academic ranks from a higher school or scientific organization, grouped in terms of fields of science, branches and specialties will be included and preclude the domination of scientists who hold academic ranks from one higher school or scientific organization. If the National Evaluation and Accreditation Agency under the umbrella of the Council of Ministers decides, at its discretion, to pose some specific requirements other than those in the ASDA, the NEAA act may be disputed in court by the stakeholders.
As the challenged piece of legislation makes it imperative on the NEAA to draw up a National List of Jury Members and Arbiters , it assumes its function of a regulator of the social relations to which it pertains as it provides regulation to a matter that concerns all higher schools and scientific organizations. The List will have to be complied with by all faculty or scientific councils when they ask the higher schools principals or the scientific councils heads to approve the jury members who they have nominated.
The MPs claim that § 11 of the ASDA infringes on academic autonomy . The Constitutional Court disagreed. Academic autonomy is a Constitution concept with its own substance and is elaborated in Art. 19 ff. of the Higher Education Act. The purpose of academic autonomy is for the State to recognize the academic freedom and self-government of higher schools and the sovereignty of their campuses. However, academic autonomy does not eliminate the need for the State to regulate the acquirement of academic ranks or the appointment to academic posts all of which is part of the preparation of a National List of Jury Members and Arbiters as this guarantees objectivity and standardizes the conditions for academic career and promotion within the framework of the control that the State is bound to exercise over all higher schools (Art. 53, para 6 of the Constitution).