Alexander Arabadjiev [1]


A review of the Bulgarian cases before the Court of Justice of the EU is an appropriate introduction to the pilot edition of the Bulgarian European Law Review. The article focuses exclusively on the preliminary references brought by Bulgarian courts under article 267 TFEU. This is due to the fact that, since Bulgaria acceded to the EU, the Commission has not yet brought a case against it under Article 258 TFEU (ex Article 226 TEC).

According to one oft-repeated formula, the Court’s jurisdic­tion to give preliminary rulings constitutes the „crown jewel“ in its competence. One should not forget that the effect of preliminary rulings is not limited to the case in which the relevant request is made. They act as a source of law in the legal system of the EU. The interpretation which is given in a preliminary ruling is therefore binding not only on the referring national jurisdiction but also on the courts and administrative bodies of the Member States. This is of particular importance to Bulgarian courts, given that neither the constitutional amendments introduced prior to the accession of Bulgaria to the European Union nor the interpretation of the Bulgarian Constitutional Court in this regard reflect fully the mechanism by which both legal orders interact.

For national courts, active participation in the dialogue with the European Court of Justice has another important aspect. Dem­onstrating competence, the degree of preparedness and readiness to interpret and apply EU law, is an important factor for strengthen­ing mutual trust in the realisation ofan European area of justice.

It should be noted that the recent general increase in the number of preliminary references can be attributed, on the one hand, to the effects of the last two enlargements, and, on the other hand, to the removal, by the Lisbon Treaty, of the restrictions placed on the Court’s jurisdiction by virtue of the now repealed Article 35 TEU and Article 68 TEC. The introduction of an urgency procedure in the area of freedom, security and justice has also had an impact on the abovementioned increase.

Since Bulgaria’s accession in 2007 Bulgarian courts have made a total of 28 preliminary references. For comparison – from the countries that joined the EU on May 1, 2004 – only Poland and Hungary – with 35 and 36 cases – excel us, while others, despite their accession to the EU two years and eight months earlier, have fewer cases (Czech Republic 15, Slovakia 9, Latvia -10). As for Ro­mania, whose EU membership is also dated January 1, 2007, the number of preliminary rulings made by courts of this country is roughly the same, but 15 of them are related cases, which means that all of them address the same issue.

Their subject matter concerns a variety of EU law matters, in­cluding taxation, customs matters the area of freedom, security and justice, the freedom to provide services, free movement of persons, intellectual property and cohesion policy, social security law, etc.

The Court has already given judgment in 13 of them. Two of the cases (Elchinov and Kadzoev) were heard by the Grand Chamber. The Elchinov case which concerned the interpretation of Articles 49 EC and 22 of Regulation No 1408/71 gave rise also to a land­mark ruling with regard to the extensive power enjoyed by national courts to make a reference to the Court and also to the interpre­tation sought from the Court as a means of eliminating difficul­ties – including in the form of a binding ruling of a higher court

  • which may be occasioned by the requirement of giving European Union law its full effect.

The Kadzoev case, following a request of the referring court

  • Administrativen sad – Sofia grad, – was dealt with under the urgency procedure pursuant to Article 104 b of the Rules of Proce­dure of the Court.

Three ofthe cases (C-339/10, Estov, C-499/09, Canon, C-32/10, Semerdzhiev), gave rise to a reasoned order.

The references in cases C-430/10, Gaidarov, and C-434/10, Aladzhov, which are still pending, raise a number of questions re­lated to the right of free movement of Bulgarian citizens in the Eu­ropean Union. They concern, in particular, a prohibition to leave the country imposed on the plaintiffs in the main proceedings by virtue of Articles 75 and 76 of the Law on Bulgarian Identity Doc­uments. It is interesting to point out that the Bulgarian Supreme Administrative Court has in the meantime ruled that the former of the abovementioned provisions of the national law is contrary to directive 2004/38, whilst the Constitutional Court ruled that this same provision is contrary to the Bulgarian Constitution. Neither of these superior Courts, however, took into account the fact of the pending before the European Court of Justice references, nor – in the case of the Constitutional Court – examined the option of having itself recourse to such a reference.

Overall, the preliminary rulings of the Court are well received by the referring courts which have so far fully complied with them. In one of the cases the legislative framework has been amended in order to take account of the preliminary ruling of the Court.


[1] Judge at the Court ofJustice of the European Union, Chairman of the Board of the Bulgarian Association of European Law.


Линк към цялата статия на български език: БЪЛГАРСКИТЕ ДЕЛА ПРЕД СЪДА НА ЕВРОПЕЙСКИЯ СЪЮЗ