Decision No. 12 of 28 November 2013 on Constitutional Case No. 9/2013
The case was initiated in response to a challenge by the President of the Republic of Bulgaria of the constitutionality of § 14 and § 15 of the Act Amending the Black Sea Coast Development Act (AABSCDA) (DV, No 27/2013) regarding Art. 17, para 2, item 6 and Art. 17а, para 1, item 2 of the Black Sea Coast Development Act (BSCDA) (DV, No. 48/2007, last amendment, DV, No. 66/2013).
Concerning the first part of the challenge, it is insisted that item 6 of Art. 17, para 2 of the BSCDA was in contravention of Art. 4, item 1, Art. 15, Art. 18, para 6 and Art. 19, para 2 of the Constitution. It was claimed that the provision challenged which is among the exceptions of the inapplicability of the rule in Art. 17, para 1 of the BSCDA does not create mechanisms to make sure that changes in the designation of agricultural lands and of plots of land in forest areas falling within Zone A and Zone B of the coast are contingent upon a balance between the promotion of investment, the development of regions and municipalities and the provision of conditions for sustainable integrated development of the municipalities and for the Black Sea coast development; also it was claimed that the text as it is, in the absence of guarantees for proper enforcement, creates legal uncertainty and makes abuse likely, hence the violation of Art. 4, para 1 of the Constitution. In the movant’s understanding the Investment Promotion Act (IPA) provides for four kinds of certificates and the issue of Certificate B for municipal investment is legally permissible for practically all sectors of the economy, the more so that the deficient legislation makes it possible to vary the enforcement. The municipal councils’ delegated power to determine the investment parameters that will make them eligible to be Certificate B holders and the justification of a change in the designation of plots of land in forest areas is not consistent with the principle of the state committed to the rule of law; therefore the matter must be treated in a law rather than let a bylaw enter the domain of primary legislation. The challenge saw a violation of Art. 19 of the Constitution which reads that the State shall establish and guarantee equal legal conditions for economic activity to all citizens and legal entities. A double standard is applied to the forest areas in Zone A and Zone B on the Black Sea coast and elsewhere in the country as the Forestry Act (FA) disallows to change the designation of lands that are holders of an investment class certificate. While it is in the public interest to enforce harsher measures to recognize the national importance of the Black Sea coast, conditions for balanced development have not been provided.
The second part of the claim noted that the passage of Art. 17а of the BSCDA eliminated the absolute ban on activities that damage the dunes and the Act allows to make exceptions in three cases. The movant insisted that item 2 of Art. 17а, para 1 of the BSCDA conflicts with Art. 4, para 1, Art. 15 and Art. 18, para 6 of the Constitution. The text challenged departs from the Constitution-prescribed obligation of the State to ensure the reproduction and protection of the environment and fails to achieve the Lawmaker’s objective which is the conservation of the dunes. Contrary to the goal that the Act pursues, the intensity of protection of the Zone A dunes is weaker. It is ignored that the dunes are public state property which cannot be transferred into private ownership; it is not ensured that the natural resources and the national assets are made a rational use of in the context of the exceptions allowed nor is the importance of business for society recognized. The exception made for construction and operation of technical infrastructure sites does not differentiate between public property whose upkeep and management conform to public interest, i.e. the interest of individuals and of all society and private property nor does it formulate overriding public interest.
The Constitutional Court discussed the facts that make up the case, the movant’s rationale and the positions of the parties involved and ruled thus:
The targets of the challenge are two BSCDA texts that were incorporated by § 14 and § 15 of the Act Amending the BSCDA (DV, No. 27/2013), and that were seen as unconstitutional: item 6 of Art. 17, para 2 and item 2, para 1 of Art. 17а, respectively. Both texts introduce exceptions to the general rules that the aforementioned texts of the Act formulate.
Art. 15 of the Constitution reads that the Republic of Bulgaria shall ensure the protection and reproduction of the environment, the conservation of living Nature in all its variety, and the sensible utilization of the country's natural and other resources. This imperative coves all activities and all forms of ownership. It provides the basis for Art. 55 of the Constitution which reads that citizens shall have the right to a healthy and favorable environment corresponding to established standards and norms and the obligation to protect the environment.
In keeping with the Constitution, Art. 1, para 2 of the Black Sea Coast Development Act reads that the main objectives of this act shall be the creation of conditions for protection, sustained integrated progress and development of the Black Sea coast, the protection, preservation and rational use of natural resources (item 3) and the restoration and protection of the natural landscape (item 6). Two development protected zones shall be established along the Black Sea coast: 1. Zone A with a regime of special urban development protection; 2. Zone B with specific characteristics of the territory and special regime for protecting territorial and aquatorial resources. Both zones are under a ban and subject to a permission procedure for certain activities (Arts. 10, 11 and 12 of the BSCDA). Construction and other urban operations will need a detailed spatial development plan which is to be approved by the municipal expert council on spatial development whose composition is defined in Art. 16 of the BSCDA.
The original wording of Art. 17 (DV, No. 48/15.06.2007) runs thus: “Changes in the designation of agricultural lands and of plots of land in forest areas falling within Zone A and Zone B, for creating or expanding urban territories or for construction on individual real properties estates or groups thereof shall be allowed only if this has been provided for in an effective general urban development plan for the respective territory of the municipality and a detailed development plan approved under the procedure of the Spatial Development Act.” The text was not essentially changed when the amendment to the BSCDA was discussed. However, the field of application faced a higher ceiling as with the exception of the cases referred to in paragraph 1 of Art. 17 of the BSCDA, changes in the designation of agricultural lands and of plots of land in forest areas shall be made on the basis of an effective detailed spatial development plan for works that include, inter alia, “works which have been awarded an investment class certificate under the Investment Promotion Act”. The comparison of the text of para 1 and the text of para 2 of Art. 17 of the BSCDA shows that subject to the general rule a permission for urban development is subject to effective general urban development plan for the territory under a municipality’s jurisdiction whereas for works under paragraph 2 of Art. 17 of the BSCDA the availability of a detailed development plan is sufficient. That is, the scope is extended – the works listed in items 1-10 of paragraph 2 – for which a general urban development plan is not needed. Thus a more liberal regulation is put in place concerning works in the mentioned zones in contrast to the goal as worded in Art. 17, para 1 of the BSCDA which prescribes for the limitation of activities that adversely impact the environment. This being the situation primary importance is attached to the law-established criterion that defines the exception under paragraph 2 of Art. 17 of the BSCDA. This is so as the reference to the exception opens a likelihood of an effect contrary to the effect that the BSCDA pursues: instead of a greater protection that it extends over Zone A and Zone B lands by means of the non-permission to change the designation of the lands, the protection becomes weaker and balance is not achieved in the alignment of economic requirements to environmental requirements. This is relevant primarily to cases when the option of exception is linked to the criterion “investment class certificate”.
The Municipal Council acts upon a Mayor’s move and it is sufficient, providing the designation of the piece of property is to be changed, for the municipal expert council to make an assessment on the basis of the criterion “investment class” which is irrelevant to the protection of the environment, the conservation of living nature and of biodiversity so as to enable the implementation of an investment project which is dissonant with Art. 15 of the Constitution as certification under the Investment Promotion Act is not contingent upon environmental requirements.
To let pieces of property be used to ends other than the initial ones as set out in paragraph 1 of Art. 17 of the BSCDA it is obvious that the cumulating effect of a general urban development plan and a detailed development plan is a requisite. This is even more important in view of the fact that the BSCDA is a lex specialis vis-à-vis the Spatial Planning Act (SPA) and the Environmental Protection Act. The purpose is to extend protection which is stronger than the protection provided by the general laws with the raison d'être of the general urban development plan borne in mind. Art. 104 in combination with Art. 103, para 2 of the Spatial Development Act are the core of the overall urban development for the territories under the jurisdiction of one municipality or another, for parts thereof or of individual populated areas and the lands that belong to them – it is they that determine the general structure and the dominant designation of the territories, the type and designation of the technical infrastructure and the protection of the environment and the assets of cultural and historic heritage. The codified exception for the change of the designation of the pieces of property to be subject to a detailed development plan only would result in a violation of Constitution provisions unless the criterion and the field of application are exactly and accurately pre-fixed. However, item 6 of Art. 17, para 2 makes no provision to that effect.
Art. 103, para 3 of the SPA reads that a detailed development plan shall determine the specific intended purpose and manner of planning of the separate lots comprehended into the plan. In the absence of a general urban development plan it appears that the law-prescribed integrated Government policy of construction along the Black Sea coast has not been pursued. Violations are impossible to prevent by environmental protection measures towards other spatial planning related legislation as Art. 17, para 2, item 6 of the BSCDA precludes the effect of protections that are inherent to a specialized legislation as per Art. 17, para 1 of the BSCDA and all that is inherent to and that is provided by a general urban development plan. It should be borne in mind that a detailed development plan that has been drawn up with no general urban development plan in place, in drawing up a general urban development plan (in the indefinite future) shall have to conform to the detailed development plans that have already been drawn up and applied in relation to a piece of property or a group of pieces of property. There is a change of designation of property over which stronger protection is extended (arg. Art. 17, para 1 of the BSCDA) while just one criterion is given, an economic criterion at that, which is determined solely by the respective local authorities. The criteria should be defined in the piece of legislation that treats the exception and should be relevant to the protection of the environment, providing there exist limited, in principle, possibilities to reassign or change the designation of farmland and land plots in Zone A and Zone B that are situated in the forest areas. The Investment Promotion Act shall not be a criterion of and a reason for the applicability of the exception concerning business in the said lands in the different municipalities along the Black Sea coast because of the subjective element that is incorporated in the regulation.
The Constitution-proclaimed right to a favorable environment as a supreme value and a guarantee for the life and procreation of generations collides with another Constitution-proclaimed right and this is not to be tolerated. Rights shall act in parallel and in compatibility; rights shall not confront with one another. One Constitution-established value shall not be detrimental to other such values nor shall the balance to be struck between them be ignored.
The general urban development plan is the act which can change the designation of pieces of property as per the Spatial Planning Act. The detailed development plan is a subordinate act. Provisions about the drawing up a general urban development plan have undergone multiple changes. However, the principle that it is the dominating act and that the detailed development plan shall comply with and conform to the general urban development plan is invariably present in the legislation. Reference to the exception implies, inter alia, the exclusion of Art. 124, para 2 of the SPA which imperatively prescribes that the permission to draft a general urban development plan of municipalities under the BSCDA shall be contingent upon an order from the Minister of Regional Development (DV, No. 66/2013). Therefore the precise delineation of the field of application for the exception under item 6 of Art. 17, para 2 of the BSCDA is indispensable as the change of designation and of the urban development of land plots that are approved by a detailed development plan alone impacts the general urban development plan drafting process and the circumvention of the objective criteria of conditions to be provided to conduce to sustainable territorial development while it does not provide guarantees that Art. 15 of the Constitution is complied with. Such compliance can be achieved only if a clear, precise and sufficiently definable criterion can be formulated for all levels to justify the exception needed. There is no such criterion in the challenged text and this is in contravention of Art. 4, para 1 of the Constitution.
Art. 17, para 2 of the BSCDA arranges for an exception. It is a principle in law that exceptions shall be interpreted and strictly observed. If the field of application of the exception needs to be expanded, the expansion shall be codified in a text that explicitly covers the special case. The idea is to apply the general rule and make it valid for all cases that don’t have the elements that are inherent to the exception. Therefore in keeping with Art. 4, para 1 of the Constitution all the cases that are covered by the exception shall have the specifics that determines them and that specifics shall be clearly defined in order to preclude ambiguities, doubts and uncertainties. This is required so that no discrimination occurs in the intention and application of exceptions on a case by case basis. These cases have essential distinctive and contrasting features in relation to the cases that are subject to the general legislation. Thus practically action based on the formal application of the exception results in a legal situation which is not codified but which is used as a rule in contravention of the general codified principle from which, due to its specifics, the exception is deduced. If whenever the general rule has a flaw or has been stripped of its regulatory force in social terms, changes are made to establish two rules that could be referred to the category of general rules, then the basic rule ceases to be a general and basic rule and becomes a subordinate rule. Though formally there exists a general rule and an exception, in the reality of law enforcement both rules enjoy an equally applicable status that is contingent upon the law-enforcing authority’s discretion. The legal reality plunges into ambiguities and preconceptions to result in regulations that are neither uncontroversial nor efficient. All in all, this directly conflicts with the principle of Art. 4, para 1 of the Constitution reading that the law shall take its course.
Viewed from this angle, Art. 17, para 2 of the BSCDA and in particular item 6 is a typical example of an availability of an option to allow an exception that will further allow to depart from and disregard a general rule. The BSCDA is explicit in the provision that two conditions shall be cumulatively required for a permission to change the designation of plots of land that are termed, on the basis of their features, “farmland” and land plots in forest areas in Zone A and in Zone B. The former constitutes a general urban development plan where the land features and that is valid for the relevant territory of the municipality; the latter constitutes a detailed development plan that has been approved in the SPA-prescribed procedure. This general rule may be bypassed by the exception that provides for a change of the designation of farmland and landed plots in forest areas in the mentioned ten cases when the change may proceed “on the basis of a detailed development plan in effect.”
It is not accidental that the general legislation makes the permission contingent solely upon a general urban development plan in effect. This stands for certainty and strict definition of the preconditions and the “ceiling” of enforcement. The text reflects the understanding of the importance of both plans and of the need for the two underlying principles to coexist whenever it is a case of regulation of societal relations in the event of change of designation – environmental protection and private and national interest in line with Art. 15 of the Constitution in the establishment and expansion of urban development areas in definite zones of the territory or the development there. The legislation opts for what must be typical and necessary and for what calls for guaranteed environment-friendly human activities in urban improvements and for assurances that environmental requirements shall not be waived. Therefore, while the change of Art. 17 of the BSCDA should be seen as a giver of force and of prominence to assurances that any abuse of nature will be barred, there was no consistency in formulating the criterion of the exception that paragraph 2 of Art. 17 of the BSCDA provides for.
Content-wise Art. 17, para 2, of the BSCDA is not different from Art. 109, para 3 of the SPA. The repetition in both acts – the BSCDA and the SPA – is a legal approach that although inconsistent with the Statutory Instruments Act shows, in this particular case, the significance of provisions as an exception to the general rule. That approach is justified though as according to the general provisions of the SPA Art. 109, para 3 shall enter into force on 1 January 2016, whereas for the sake of business and promotion of entrepreneurship along the Black Sea coast the exception under Art. 17, para 2 of the BSCDA is already in effect (DV, No. 27/15.03.2013) and is applicable to cases that are covered by item 6 which is challenged by the President with regard to the holders of an investment class certificate as per the Investment Promotion Act. The entry into effect on different dates of textually identical provisions in the context of different general texts and the scope of the two acts provokes issues whose resolution affects the balance of legal decisions and raises doubts about the regulation and its dependability, so again the principle of Art. 4, para 1 of the Constitution is violated.
The Investment Promotion Act seeks to define the conditions and procedures of investment promotion, the activities of the institutions of the State and the protection of investment by means of financial and administrative support tools. According to Art. 10, para 1 of the IPA the Minister of Economy, Energy and Tourism shall ensure the conduct of the State policy in the field of investments in interaction with the authorities. The Minister shall issue an investment class certificate through the InvestBulgaria Agency which shall keep a record of the certificates issued in the procedure of the IPA (Art. 116, item 7; Art. 20, para 1, item 3). The BSCDA does not specify which zones entitle to an investment class certificate. Evidently a certificate may be issued for all zones that are covered by Art. 17, para 1 of the BSCDA – Zone A and Zone B. Class C Investment Certificates (Art. 15, para 3 of the IPA) are also intended for Zone A and Zone B. These are investments of municipal importance, which have been awarded a Class C Certificate and shall be promoted for the execution of the investment project by the Mayor of the Municipality with measures according to the procedure established by Article 22 para 3 of the IPA. It is the Mayor who issues the Class C Investment Certificate on the basis of a municipal council’s decision (Art. 18 of the IPA) and such investments are promoted in keeping with Art. 15, para 4 of the IPA. The Mayor has the authority to determine the investment certificates and to award a Class C Investment Certificate. In this way urban improvements in a territory become subject solely to a detailed development plan in line with the exception in Art. 17, para 2 of the BSCDA and in conformity with economic interests at local level. The Supplementary Provisions of the IPA – § 1, item 7 and item 8 read thus, respectively: „Establishment” shall be an economically indivisible set of fixed assets, which are interconnected physically and functionally for production of a specific product or products; and “Starting work on an investment project” shall be the start of construction activities or the ordering and delivery of tangible and intangible fixed assets, with the exception of technological and economic pre-feasibility studies. It is evident that the IPA does not treat at all nor does it take into account, in whatever form, the environment-related requirements that an investment class certificate cannot be a valid criterion to justify the exception and to ignore the explicit requirements of paragraph 1 of Art. 17 of the BSCDA that provides for a general urban development plan.
The National Assembly adopted a decision to declare a moratorium on all transactions of disposition and works involving state-owned land in Zone A and Zone B under the Black Sea Coast Development Act but for infrastructure projects of local and national importance (DV, No. 64/19.07.2013). The decision suspends any transactions of disposition, change of designation and construction work in state-owned plots of land within the property lines and assigns to the Council of Ministers to submit a financially resourced program to award contracts of the production of specialized maps for sites under Art. 6, para 4 and para. 5 of the BSCDA and to set a deadline for the suspension until specialized maps for any of the sites that are covered by Art. 6, para 4 and para 5 of the BSCDA are drawn up and approved. The Ministry of Environment and Water has been assigned to propose the establishment of a Bulgarian Black Sea Coast National Park.
The moratorium shall cover Zone A and Zone B under the BSCDA, i.e. the zones that are subject to Art. 17 of the BSCDA and as there exist no other attributes of classification, this shall hold good of the forestlands and the farmlands and landed property thereof.
However, the text analysis shows that the moratorium is not all-embracing. Even the BSCDA-established Zone A and Zone B cover only state-owned land. Land that is not owned by the State is not subject to the moratorium. Compliance with environmental requirements is a policy of sustainable environmental protection, so it is inadmissible to expand the scope of application of the exception under Art. 17, para 2 of the BSCDA in order to thwart the environmental protection of land property which is not owned by the State. Environment related matters have significance of their own and concern all forms of ownership while the conditions of change of designation of property in the territories as specified in Art. 17, para 1 of the BSCDA should be identical (argument Art. 19, Art. 20 of the Constitution).
Compliance with the BSCDA prescriptions is of primary importance regardless of the form of ownership. The Constitution makes it binding on the State to assume the responsibility to ensure the legislation that will guarantee the rights under Art. 15 and Art. 55 of the Constitution while care for the environment shall be made binding at all levels of legal regulation. The judgment of the need to allow an exception to the principle of conservation and reproduction of the environment for the sake of economic activities should be formed in this spirit; therefore the exception should be taken hardly ever and draw on very sound reasons and that is not to be found in item 6 of Art. 17, para 2 of the BSCDA. To strike the right balance between the community’s interest and the individual’s interest that call for investment in and urban development of territories is a requirement that can’t be justified by an investment class certificate as issued under the IPA alone that sets but economic parameters only. It is needed to assure the right balance between the interests of society as a whole, the local interest and the interest arising from the exercise of the right under Art. 19, para 1 and para 2 of the Constitution and the right to a healthy and favorable environment (Art. 55 of the Constitution). The prescription of Art. 17, para 2, item 6 does not ensure such a balance. It is not sufficient to treat just the individual case of class certification under the IPA, the way it is with the production of a detailed urban development plan (item 6, para 2 of Art. 17 of the BSCDA) and to ignore the environmental impact. The general consequences of environmental impacts for many cases should be borne in mind and this might be brought about only by a general urban development plan for a region or a nucleated settlement.
When a judgment is made of the constitutionality of the challenged text – Art. 17, para 2, item 6 – in view of Art 15, Art. 55, Art. 4, para 1 of the Constitution, it is not sufficient either to find post factum a damage to the environment and to estimate the compensation due. The purpose is to disallow and stop an activity that might cause harm to the environment. Art. 15 of the Constitution expressly sets the requirement to ensure the protection and reproduction of the environment, the conservation of living Nature in all its variety, i.e. the requirements concerning the State environmental policy on a par with the rest of the requirements concerning the development of societal relations in the private and public sectors of the economy – i.e. to exploit and use rationally the natural resources and the national wealth. Preoccupation with the environment is not merely a declarative action; it is a requirement that seeks to save life and to ensure the perpetuity of life. As apparent, regarding the case in question, the environment-related guarantees are either inexistent in the BSCDA or else are quite disputable for reasons, among other, the multiple and cross effect of the different urban development and spatial planning regulations. Even if it was for the general principle that the lex spetialis derogat legi generali – whereas lex spetialis the BSCDA – does not contain specific rules that are a sufficient foundation for an uncontroversial interpretation and application of the exceptions under paragraph 2 of Art. 17 of the BSCDA.
The Constitution guards the benefits that it proclaims against contra legem actions and also against praeter legem actions. The Constitution won’t let criteria other than those it provides for as compliant with the Constitution (those under paragraph 1 of Art. 17 of the BSCDA), nor will it let criteria whose content is indefinite and unrelated to the hypothesis advanced which leads to a an arbitrary decision that takes heed of the specific case alone. This holds true even of the cases that Art. 7 of the SPA refers to and that covers all territories in Zone A and Zone B along the Black Sea coast. While investment interest should not be ignored, it should be attuned to and voted as the procedures established demand and these procedures should not be bypassed by a latitudinarian interpretation of Art. 17, para 2, item 6 of the BSCDA. It is not accidental that Art. 124, para 2 of the SPA imperatively prescribes for a compulsory general urban development plan in two cases, viz., for projects of national importance or when the BSCDA applies. Such cases need a sanction from the central government, namely from the Minister of Regional Development. The matching of interests and the discussion of all spatial planning issues, including environmental issues, are subject to a sanction from the central government which is called to respond to a request from the municipal council which, at municipal level, takes up the initiative in response to an investor’s request. Such matching cannot be achieved if the exception of Art. 17, para 2, item 6 of the BSCDA is the applicable legal text. A well-grounded decision in line with Art. 15 and Art. 55 of the Constitution can be arrived at only in strict observation of Art. 17, para 1 of the BSCDA.
The high public expectations from the 2013 amendment to the BSCDA are related to its strict enforcement and constriction of its scope of application. The interpretation of Art. 17 should consider the purpose of the Act. Therefore Zone A and Zone B were created to implement a focused Government policy that is designed to save nature along the Bulgarian Black Sea coast. The policy is relevant both to Government-owned and privately owned possessions while private economic interest shall not dominate to an extent to exclude the requirement for a general urban development plan vis-à-vis uncertain and irrelevant criteria. Art. 52, para 3 of the Constitution reads that “the State shall protect the health of all citizens”. The Constitutional Court’s pronouncement, as it is, covers, inter alia, the provision and conservation of the living conditions that are a creation of nature and allows exceptions that relate to vitally important needs. The exception is defined in a way to cover the majority of, if not all, projects, in the described hypotheses (awarded investment class) and becomes a rule which is incompatible with the principles on which spatial planning regulation is based just as it is incompatible with the societal relations regulation in general in accordance with Art. 4, para 1 of the Constitution. Thus formulated the exception in the BSCDA puts at risk the conservation of nature and the development of economic relations. Thus contrary to the demand of long-term sustainable development of the Black Sea coast, the practices are made subservient to economic concerns that are relevant only to the current situation.
In conclusion, the Constitutional Court found that Art. 17, para 2, item 6 of the BSCDA should be declared unconstitutional with reference to Art. 4, para 1, Art. 15 and Art. 55 of the Constitution.
Considering the second part of the challenge of Art. 17а of the BSCDA the Constitutional Court based its judgment on:
The definition “dunes” is to be found in § 23 of the Supplementary Provisions of the Act Amending the BSCDA (DV, No. 27/2013), in the new item 4 that reads that “sand dunes shall mean agglomerations formed from the accumulation of sand blown by the wind. The major types of dunes shall be, as follows: embryonic shifting dunes, shifting (white) dunes, fixed coastal dunes with herbaceous vegetation (grey dunes) and wooded dunes.” § 24 of the Supplementary Provisions reads that the implementation of detailed spatial development plans which envisage development in land plots within Zone A within which sand dunes are to be found, except in the cases under Art. 17а of the BSCDA, shall be suspended. Therefore, no differentiation is made between types of dunes and the suspension is valid for all types in the definition of § 23.
The new Art. 17а, para 1 of the BSCDA reads that it shall be forbidden to build or place movable amenities and facilities, to change the designation and to establish limited rights in rem on sand dunes falling within Zone A, Zone B or the urbanized territories of populated areas beyond Zone A. The exceptions have been codified in three points, point 2 being technical infrastructure sites. This exception which is based on a permission that can be obtained but with a detailed urban development plan in place, renders the prohibition meaningless and leads to violations of Art. 15 of the Constitution. The exception that is allowed for the infrastructure in private property will (against the result that is intended with the legal arrangement of the exception) cultivate and destroy the dunes. No condition is set that may refer to specific circumstances or exclusivity of case. The very prohibition is rendered meaningless, the more so that in principle construction is prohibited in Zone A (see Art. 10 of the BSCDA) while Art. 17а of the BSCDA practically allows for cultivation that is not to be controlled at all by a municipal authority’s act. No doubt, technical infrastructure facilities may have to be installed for the sake of activities that are needed and profitable nationwide and locally or that are called for by the national defense and security (cf. Art. 10, para 4, item 3 read in combination with item 2 of the BSCDA, Art. 64, para 1, item 7 of the SPA). Dunes that are a more precious asset for society are subject to special and stronger protection.
Art. 10, para 4, item 8 of the BSCDA reads that technical infrastructure in dunes that are part of the sea beach may consist of underground ducts and networks and that any activities that may disturb the natural state of natural monuments or impair the aesthetic value thereof shall be prohibited in dunes that are listed as natural monuments (Art. 24 of the Listed Areas Act). Therefore the exception for physical infrastructure elements on sand dunes must be placed under such control that while it considers public interest, it will not let randomness and discretion factors that boil down to business profit alone justify the recourse to exception.
The provision of Art. 17а, para 1, item 2 of the BSCDA is intended to guard against development and use that are seen as detrimental to public interest that would despoil and destroy the landscape and the seascape. Therefore it is not sufficient to draw on “physical infrastructure” as a criterion under Chapter Four of the SPA. The necessity should be emphasized for actions to be taken and economic activities to be carried out and an extra criterion should be adopted to demonstrate the exclusivity and the impossibility to meet, in a way other than the suggested way, demands that relate to the development of the land which is termed “dunes”.
The Constitution calls for the compliance, in parallel, of the Government policy in environment-related operations with all values and prescriptions of Art. 15 of the Constitution. That integration policy answers, among other things, the definition in the Supplementary Provisions of the Environmental Protection Act – § 1, item 1 which defines “environment” as a complex of natural and anthropogenic factors and components in a state of mutual dependence, which affect the ecological balance and the quality of life, human health, and cultural and historical heritage, and also the definition of § 1, item 2 of “environmental protection” as a package of activities intended to prevent degradation of the environment and to ensure its rehabilitation, conservation and enhancement.
Any impact on the integrity of the dunes is tantamount to degradation of the environment since it makes rehabilitation impossible and damages the natural setting and harms the natural ecosystems to an extent beyond remedy. Hence the relevance of item 2 of Art. 17а of the BSCDA of reflections on the first part of the challenge that initiated the constitutional case in question.
The pursuit of the legitimate goal – the installation and maintenance of the infrastructure – must be subservient to and compliant with rational proportionality and coexistence of economic and urban planning relations with those that are relevant to the conservation of natural geographic features and of the environment. The general reference and definition mention “technical infrastructure sites” in item 2 is not sufficient. The exception under Art. 17а, item 2 of the BSCDA should be tolerated only for sites of great importance and whenever an alternative is not available – a restriction that the text of the law does not make apparent. The nature of this exception makes it binding on the National Assembly to resort to it providing there exist sound motives and well-grounded reasons. The rule should be observed even more when it is an underlying principle and when and if exceptions are allowed. The opposite would be tantamount to noncompliance with the prescription of Art. 4, para 1 of the Constitution.
In conclusion, the Constitutional Court pronounced Art. 17а, para 1, item 2 of the BSCDA inconsistent with Art. 4 and Art. 15 of the Constitution.