ISSUE No. 3/1999
Municipal Property In The Context of Bulgarian Local Self-Government
by Bistra Minkova, Legal Expert, Municipality of Varna
The transition of the existing political system in Bulgaria to democracy was accompanied by a change in the country's administrative and political structure, which, at a certain point in time, in response to over-centralization, demonstrated a tendency towards the establishment of self-supporting structures. At various levels this phenomenon was spelled out in different ways. Within the framework of governmental structures it can be described as a desire for administrative freedom of the independent territorial units. A new legal and political term was born: "local self-government" to denote the capability of local administrations to take independent decisions in the realms of economy and culture on the respective territories, in the interest of the inhabitants. In Bulgaria, the municipalities became such territorial units.
It is still early to speak of local self-government in the above-mentioned sense. There are many imperfections and blanks in the legal system, which make it impossible for the municipalities to directly co-ordinate public life on their territory. These issues could be discussed at length in more detailed studies, while this article will analyze the matters related to the legislative basis of municipal property.
The establishment of municipal property in contrast to state property is one of the fundamental points of municipal management.
The Local Self-Government and Local Administration Act of 1991 established the territorial and administrative structure of the country. For the first time, at least from a legal point of view, a dividing line was drawn between the notions of state property and municipal property. It was a logical outcome of the emergence of the Municipality as a new legal entity, since its existence was intrinsically related to the exercising of ownership as a basic right. To the extent to which the law regulated administrative and legal relations, public relations in respect of ownership remained outside its scope, therefore no clear mechanism was put in place for the establishment and protection of the ownership right.
The solution to these issues came later, in 1996, with the adoption of the State Property Act, the Municipal Property Act and the Regulations for their implementation. These acts use the same criteria as the ones listed in the Local Self-Government and Local Administration Act to distinguish between municipal and state property. They also indicate ways in which the ownership can be proved in case of a dispute between the two parties. However, many problems still remain unresloved.
The municipalities establish their ownership by means of Municipal Ownership Certificates (MOC). The certificates are issued in accordance with a legal procedure. The procedure differs depending on whether an old State Ownership Certificate (SOC) exists or not. If an old SOC exists, the law prescribes that the property be deleted from the State ownership register. This shall only be done with the consent of the State, which is represented by the Regional Governor.
However, it is also possible that a refusal to delete the property from the register be given; in this case, the law stipulates that the general procedure governing filing of ownership claims be followed. If the Regional Governor declares a Municipal Ownership Certificate (MOC) null and void, the result would be the same. According to the established practice of the Supreme Administrative Court, in such cases the order of the Regional Governor does not clash with the law but the case is referred to the general procedure governing the filing of ownership claims.
The point at issue is not the legal procedure for the establishment of ownership rights, which is rather complex and probably incomprehensible for many people. The point at issue does not even rest within the State's right to reassess property, which by legal definitions is municipal property, and to declare which property shall be owned by the State and which by the municipality. After all, considering the period of political and economic restructuring of the country, this is a normal legal solution.
The point at issue is, that the law does not stipulate any fixed period of time or any explicit and irrefutable conditions, which would compel the Regional Governor to repeal Municipal Ownership Certificates (MOC). The law somehow does not cover the issue about why the Regional Governor should have the power to issue an order to repeal Municipal Ownership Certificates (MOC) without any time frames. This is a possibility, which is envisaged in respect of normative legal acts.
At present, it the Regional Governor can in theory repeal any Municipal Ownership Certificate (MOC), without any limitation in time or any justification whatsoever, since the legality of the Governor's order is accepted by the law (just as any administrative order). Unfortunately, the administrative regulations do not prescribe a procedure to attack these orders but refers them to the general procedure, which, as it was mentioned above, is also the practice of the Supreme Administrative Court. The Regional Governor may also issue an order for sequestration of the contested property for the entire period of the court procedure (which normally lasts between 5 and 7 years).
Needless to say, the municipalities are in a disadvantaged position vis-a-vis the State when they need to prove their ownership rights. Such an approach is not justified when the property in question is neither unique nor meets any specific needs of the State but consists of buildings housing social establishments or rented as shopping areas.
In view of the observations made above, and taking into consideration the obligation of municipalities to inform the Regional Governors about issued Municipal Ownership Certificates (MOC) and also to send copies of these certificates for cross-checking, from a legal point of view it would be appropriate to stipulate a restrictive deadline within which Regional Governor's orders may be repealed, provided that specific legal circumstances exist.