(in the light of several recentjudgments of the Bulgarian Constitutional Court, Supreme Administrative Court and the Court of Justice of the EU)

 

Natalia Angelova[1]

 

The freedom of movement within the European Union of Bulgarian citizens as citizens of the Union and the measures for its restriction provided for under national law have been the subject of parallel scrutiny first by the Bulgarian Supreme Administrative Court, second, by the Bulgarian Constitutional Court and third, by the Court of Justice of the European Union. All of the aforementioned judicial bodies examined whether the national legislativeand administrative acts which restrict the right of a Bulgarian citizen to leave the country on grounds of protecting the rights of others citizens and the public order, comply with the principle for proportionality as a condition for the compatibility of the measure withtheConstitution of the Republic of Bulgaria, as well as with the law of the European Union. Another aspect of these cases concerns the scope of judicial control in cases where a restrictive administrative measure banning a Bulgarian citizen from leaving the country has been challenged before a national court.

An important consequence thereof stems from the obligation of national administrative authorities and courts to apply EU law which results from their duty to apply the law to the facts of the case and to review the conformity of the challenged measure even on grounds that have not been raised in the complaint. EU law should thus be applied by national authorities in the context of the principle of national procedural autonomy, as well as of the other principles which underpin their obligation to ensure effective enforcement of EU law.

The obligation of national courts and administrative authorities to apply ex officio the law of the European Union can be seen as an integral part of the so called European administrative law as a general concept pertaining to the applicable administrative law resulting from the hierarchy of national, international and EU law. It is therefore argued that, after Bulgaria’s accession to the EU, the application only of national administrative law to any given case, to the exclusion of the applicable EU law on grounds that the complainant has not relied on the latter, is no longer tenable.

The judgments discussed in the present article have the merit of restating thatthe legality of national legislative and administrative acts can be reviewed for compliance with the principle of proportionality in the context of exercising judicial control over their compatibility with the Bulgarian Constitution, as well as with EU law. In addition, the interpretative judgment of the Supreme Administrative Court spells out the obligation for national courts to apply EU law, thus ensuring the protection of fundamental rights and freedoms in the specific context of imposing measures restricting the freedom of movement of Bulgarian citizens within the EU.

It is hoped that the judgments discussed in the present article will contribute to the foundation of a new line of case law and administrative practice consistent with EU law and will represent a further step towards strengthening the trust in the judicial system and the rule of law.

 

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Линк към цялата статия на български език: СВОБОДАТА НА ДВИЖЕНИЕ НА БЪЛГАРСКИТЕ ГРАЖДАНИ КАТО ГРАЖДАНИ НА ЕВРОПЕЙСКИЯ СЪЮЗ  И   МЕРКИТЕ ЗА ОГРАНИЧАВАНЕТО Й

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[1] Judge at the Administrative court of the city of Sofia.