The Editorial Board
The article provides an overview of the recent case-law of the Bulgarian Supreme Administrative Cоurt (SAC) in relation to the application and interpretation of EU law. The analysis has shown a number of problem areas and tendencies, which can be summarized as follows:
- The number of preliminary references made by the Bulgarian SAC is almost four time inferior to the number of references made by the lower administrative courts. Amongst SAC’s 14 references, only one has been rejected as inadmissible. However, none of them has attracted the attention of the Court of Justice’s Grand Chamber and only two have led to an Advocate General’s opinion. The data thus show that while, on the one hand, the SAC’s preliminary references are most of the time correctly drafted and thus compliant with the admissibility criteria, on the other hand, they have not as a whole raised important questions of interpretation and/or validity of EU law.
- The parties submit ever more often requests for preliminary references to the SAC. There are many examples however of such requests being too general, ambiguous or pertaining to a problem clearly out of the scope of application of EU law. The sheer number of these examples shows that in certain cases the parties tend to instrumentalise the preliminary reference mechanism.
- There is a worrying tendency in the SAC’s case-law of rejecting the parties’ requests for preliminary reference on the ground that matter of EU law in question concerns the admissibility of the application and not its substance. The SAC thus seems to consider that all matters of admissibility are a matter for national law in application of the principle of national procedural autonomy, and not for EU law. This tendency stands at odds with EU law, which guarantees the right to effective judicial protection in the areas which come within the scope of application of that law.
- The SAC often rejects the parties’ requests for preliminary reference on the ground that the meaning of the EU rule at hand is clear beyond reasonable doubt, even where the SAC’s own case-law on the matter is inconsistent. Moreover, the reasons given by the SAC are often standardized or too general. There are also exceptions however, in particular where the SAC motivates its refusal to refer by citing the relevant case-law of the Court of Justice.
- The SAC very rarely, if ever, rejects the parties’ requests for preliminary reference on the ground that the matter falls outside the scope of EU law, although on numerous occasions this was clearly the case. Instead, the SAC prefers rejecting them on other, often dubious, grounds. This shows the serious difficulties the SAC experiences when deciding whether EU law applies in a given situation.
- At present, the SAC rejects systematically all requests for reopening of a final judgment based on an alleged violation of EU law. In this regard, the SAC simply refers to national law, which does not provide expressly for such ground for retrial.
- On a procedural level, there is also inconsistency in the case-law. In some cases, in the operative part of its judgments, the SAC first rules on the admissibility of the application or on its substance and only then rejects the request for preliminary reference, while in other cases it follows the reverse order. There are also examples, where the SAC rejects the request by separate order, delivered before the final judgment.
- In its appraisal of the request for preliminary reference, the SAC almost exclusively argues in terms of the relevant provisions of the Bulgarian code of civil procedure (which, in a way, “transpose” into Bulgarian law Article 267 TFEU and the Court of Justice’s case-law) and not by reference to Article 267 TFEU.
Link to the article in Bulgarian language: ПРЕДИЗВИКАТЕЛСТВА ПРЕД ВЪРХОВНИЯ АДМИНИСТРАТИВЕН СЪД ПРИ ПРИЛАГАНЕ НА ПРАВОТО НА ЕС