It is unconstitutional to make a law retroactive by a provision to enter into force on a date prior to the promulgation.
The National Assembly's actions in fulfillment of the obligation to deal with the effects of the application of a law in the interim before it was pronounced unconstitutional must conform to the Constitutional Court decision and recognize all ensuing legal effects.
Fifty-four MPs challenged the constitutionality of § 16 of the Transitional and Concluding Provisions of the Act Amending the National Archives Act (NAA), DV, No 59/31 July 2010. The text challenged made the amending act enter into force on 12 June 2010. The MPs insisted that § 16 which is challenged violates the principles of the state committed to the rule of law, the effect of legal prescriptions in time and of the Constitution-established period intervening the promulgation and the entry into force of pieces of legislation. The MPs claimed that a result was sought by unconstitutional means and that, once achieved, it would render meaningless the Constitutional Court decisions which are binding on all state bodies, legal entities and individuals.
An act amending the NAA (DV, No 103/2009) was passed by the National Assembly on 18 December 2009 following two ballots during a single session. The amendments deal with the organization, structure and administration of the Archives State Agency, i.e. the prescriptions concern the organization and structure. The Constitutional Court Decision № 8 on Constitutional Case № 2/2010 on violations of the legislating procedure pronounced the Act to be unconstitutional. The Constitutional Court decision was published in Durzhaven Vestnik, No 43/8 June 2010 and entered into force on 12 June 2010 (Art. 151, para 2 of the Constitution) .
On 14 June 2010 a draft act to amend the NAA was reintroduced into the National Assembly. But for § 16 which is challenged and which deals with the date of entry into force, the draft act entirely repeated the NAA amendment (DV, No 103/2009), that was pronounced unconstitutional by the cited Constitutional Court decision. The draft act was passed on 21 July 2010 and promulgated in Durzhaven Vestnik, No 59/31 July 2010. The challenged § 16 provided for the amending act's entry into force on 12 June 2010.
The Bulgarian jurisprudence does not tolerate retroactive laws and this is a principle that derives from the concept of the state committed to the rule of law as proclaimed in the Preamble and in Art. 4, para 1 of the Constitution. The principle as proclaimed in Art. 5, para 3 of the Constitution is confined to criminal laws. Though the principle is not couched expressly in a Constitution text, this does not imply that it does not cover the other laws. This principle can be derived from Art . 14, para 1 of the Law on the Normative Act on an argument of the opposite, i.e. a piece of legislation can be retroactive by way of exception and subject to an explicit provision. Neither the practice nor the jurisprudence provide examples of contradictory understanding that two types of civil law standards are always retroactive: in the first place these are the interpretative standards as they reveal the exact substance of the interpreted standard from the moment it is passed; and in the second place, the civil procedure standards as these start to apply immediately and towards all pending disputes. What is stated above was derived from the Constitutional Court practices (Decision № 9/1996 on Constitutional Case № 9/1996 and other), from which it is specially to be noted that acts on organization and structure, on the grounds of their substance and the relations that they deal with, can only be forward in time – Decision № 8/1994 on Constitutional Case № 9/1994. As noted above, the amendments to the NAA (2009 and 2010) contain provisions about organization and structure. It is inadmissible for such provisions to be retroactive vis-à-vis social relations and in fact it is impossible to create new structures before the promulgation. It is essential to explain that the possibility, by way of exception and subject to an explicit provision, to make a law retroactive means that this law will apply to facts that occurred before its entry into force regardless of how these facts were regulated prior to the entry into force – by another law or else the new law will make them legal facts. The new law is retroactive as it recognizes legally facts (events, social relations) that occurred prior to its passage and promulgation. It is inadmissible to claim so and an act cannot be retroactive regardless of the grounds given in the cases where the date of a law's entry into force is declared prior to its passage and promulgation – a law that is to create new legal facts.
The latter hypothesis pertains entirely to the challenged § 16 and apparently the matter at hand is not about a retroactive law but about a doing which disagrees with the Constitution prescriptions (Art. 5, para 5) and by which the legislating authority seeks to legitimize structural changes that were made in the past to implement the Act Amending the NAA (DV, No 103/2009) that was proclaimed unconstitutional by Decision № 8/2010 on Constitutional Case № 2/2010. The above stated and the principles in the Preamble and in Art. 4, para 1 of the Constitution of the state committed to the rule of law for guaranteeing the mainstay of law and order and for the stability and predictability of legislation and for legal certainty plus the prescriptions in Art. 5, para 5 about the promulgation of legislative acts as a condition for their entry into force and for the transparency of the legislation are sufficient reasons to conclude that the challenged § 16 of the Act Amending the NAA is in contravention of the quoted Constitution texts.
The Constitutional Court found it necessary to discuss the collision between Decision № 8/2010 on Constitutional Case № 2/2010 and the new law which is the target of this challenge. The collision arises as the two acts came into force on 12 June 2010. Art. 151, para 2 of the Constitution reads that a ny act found to be unconstitutional shall cease to apply as of the date on which the ruling shall come into force . The Constitutional Court decision invalidates the effect of an act that was found to be unconstitutional from this date onwards (Decision № 22/1995 on Constitutional Case № 25/1995). The obligation that derives for Parliament under Art. 22, para 4 of the Constitutional Court Act is to address the legal consequences arising from the implementation of an act which has been declared unconstitutional in the interim period prior to the Court decision's entry into force. The provision in question does not pertain to the legal consequences of the Court decision related to the impact on the legislative act. The legal arrangement of the social relations that were impacted by the decision is not a reason and must proceed in a way that will not render the Court decisions meaningless. Any action of the Legislature negligent of the Constitutional Court decision or of the decisions' legal effects is a violation of the law itself as it affects the fundamental principles set forth in Art. 4, para 1 about the law-abiding state which is governed in compliance with the Constitution and the national laws. In the specific case the inadmissibility to make a law retroactive precludes the entry into force and the effect of the Constitutional Court decision whereupon a direct contravention of Art. 151, para 2 of the Constitution arises.