Alexander Kornezov[1]
If numbers could speak, they would probably tell a remarkable success story. After a short period of relative shyness, Bulgarian courts have become the champions of the preliminary reference mechanism in all of Central and Eastern Europe, deferring the biggest number of references from the twelve new Member States in the period from 2007 to 2013. Today, they are still amongst the most active national courts in the new Member States. Numbers aside, the quality of most Bulgarian references has also been relatively good. Very few have been struck down as inadmissible or answered by reasoned order because the reply was clear or could be deducted from the case law. In most cases Bulgarian courts have successfully weeded out legislation incompatible with EU law, while maneuvering with relative ease between the various EU tools at their disposal – primacy, direct effect, conform interpretation, procedural autonomy etc.
One of the root causes for the preliminary reference bonanza that seems to have befallen Bulgarian courts is to be found in the legislator’s pro-active role. By “transposing” the preliminary reference mechanism into national law, he transformed it overnight into a daily affair, which quickly entered the mouths, minds and files of judges. In particular, the legislator explicitly declared that the order for preliminary reference was not subject to appeal. This gave wings to lower courts. The stage was thus set for the triumphant arrival of the preliminary reference mechanism in Bulgaria.
But behind the scenes a different story has been unfolding. The vast majority of references came from lower courts, in particular administrative courts, with just a trickle from civil and criminal jurisdictions. By contrast, the Bulgarian supreme and appellate courts have played just a minor role in the process, while the constitutional court has remained practically invisible in the European discourse.
A peculiar phenomenon has been also taking place: Lower courts were using the preliminary reference to stand up to supreme courts and question their EU-competency. These might thus be the signs of an unusual upheaval of the lower courts against the system’s inertia. All of this would have been unthinkable before EU accession.
While the preliminary reference has probably become the strongest and the most efficient weapon of this commotion, behind it there are important generational and institutional undercurrents that shape the image of the system as a whole. The generational dimension goes far beyond the usual banality of juxtaposing the old against the young. It is rather a matter of different legal mentality, perceptions, style and culture. An institutional experiment was carried out in the system of administrative justice, where the majority of judges in the lower courts came from outside the system. Incidentally or not, they have been the ones who have most actively pioneered the integration of EU law into Bulgaria’s judicial landscape.
***
Link to the article in Bulgarian language: Десет години преюдициални запитвания – критичен преглед и равносметка
***
[1] The views expressed are strictly personal. This article is updated version, based on data pertaining to the period between 1.01.2017 to 1.03.2017, of an earlier article “When David Teaches EU Law to Goliath – A Generational Upheaval in the Making” in M. Bobek (ed.), Central European Judges under the EU Influence: the Transformative Power of Europe Revisited on the 10th Anniversary of the Enlargement, Hart Publishing, Oxford and Portland, 2015, p. 241-267