ISSUE No. 5/1999

On The Regional Governors Control Of Local Self-Government Institutions

by Emilia Panayotova, Ph.D. in Law, "St. Kliment Ohridski" Sofia University

The reform of the legal framework of local self-government in the Republic of Bulgaria is an important element of the country's preparation for European accession. The need for amending the existing regulations includes the issue of control exercised on the legal acts of local self-government bodies*.

The following legislative documents contain general legal norms for administrative regulation of local self-government bodies and local administrations in the Republic of Bulgaria: the Constitution of the Republic of Bulgaria (art. 143, par. 3, art. 144), the Administration Act (art. 31, item 5, art. 32, par. 2) and the Administrative Procedure Act (Chapter Three, Section One).

Article 144 of the Constitution contains two basic principles regulating the control of central government bodies and their local representations over municipalities:

Administrative control shall be exercised only in order to verify compliance of local self-government with the law.

Administrative control may be exercised only when stipulated by law.

To what extent is the regulatory function of the regional governors, provided in the Administrative Procedure Act and the Administration Act, compliant with these two principles?

The Administrative Procedure Act (APA) establishes a "general clause" governing the authority of individual administrative acts (Chapter Three, Section One). However, two facts must be taken into consideration when applying the clause. First, the "general clause" on the control exercised by regional governors over the legal acts issued by municipal councils and by municipal mayors, is applicable only to the single administrative acts, and not even to all of them but only to those bearing the characteristics listed in art. 2 of the APA. It is widely accepted both in theory and practice, that the concept "single administrative act in the sense of the APA" is more restricted than the concept "individual administrative act" in terms of subject matter. The scope of the first concept is defined in art. 2 of the APA. It includes acts, which "... introduce rights and obligations or affect rights and legal interests ( ... ), as well as the refusal to produce such acts"; likewise, "... decisions concerning the issuing of documents, which are essential for the recognition, exercise or annulment of rights and obligations, as well as the refusal to produce such documents". Consequently, nearly all the "individual administrative act in the sense of the APA" are constituent, declarative or certification administrative acts. The provisions of the APA do not cover the internal official administrative acts (art. 3, par. 4 of the APA) or the certification administrative acts. Therefore, the two latter groups of individual administrative acts issued by the local government bodies are beyond the control of the regional governors. Second, if the controlling functions listed in Chapter Three, Section Three of the APA are to be "withdrawn", special rules of the respective law shall be applied.

The Administration Act (art. 31, item 5) establishes a general rule, by virtue of which the regional governors have the right "to exercise control of the legality of the acts and actions of the local self-government bodies and local administration".

The control of the acts according to art. 31, item 5 of the Administration Act, is stipulated in greater detail in art. 32, par. 2 of the same law. Depending on the type of the body, the regional governors may "cancel the execution of illegal acts of the municipal councils, and refer them to the respective district courts...", as well as "... to nullify illegal acts of municipal mayors...". The following conclusions may be drawn from the analysis of article 32, par. 2 of the Administrative Act. First, the rule does not authorize regional governors to exercise control of all the acts of the municipal councils and of mayors, since the adjective "illegal" is used without the definite article [The definite article changes the meaning - N. Tr.]. Second, although it contains no "general clause", the rule does not fix any criteria about the types of acts that shall be subject to control.

With regard to municipal mayors, the gap is filled by means of an extension to art. 27 of the APA, which regulates the matter of control** in a general way, i. e. the acts of mayors of municipalities may be charged only in conformity with the conditions and the order established by the APA.

Concerning municipal councils' acts, the criterion can be inferred from art. 6 of the Supreme Administrative Court Act (the SACA), which postulates a "general clause" of appeal before the court of the normative and general administrative acts issued by the councils. In view of the fact that only Chapter Three, Section Two of the SACA regulates the procedure of appeal of normative and general administrative acts, one can conclude that at present, these acts may be tried in conformity with that procedure only. Prior to the adoption of the SACA, the normative and general administrative acts issued by local self-government bodies could be appealed in conformity with the APA, for neither the Local Self-Government and Local Administration Act nor any other special law contained provisions on the order of trials and on the jurisdiction of the court. Article 6 in fine of the SACA contains a provision stating that appeals may be heard not by a district court but by any other court if a special law stipulates so. Therefore, no obstacle exists for these cases to be heard by the Supreme Administrative Court (SAC), in accordance with the provisions of Chapter Two, Section Three of the SACA, if a special clause to this effect is included in the Local Self-Government and Local Administration Act .

As for the individual administrative acts of the municipal councils, the applicable procedure for their appeal by the regional governor is stipulated in the APA (Chapter Three, Section Two). Article 32, par. 2 of the Administration Act stipulates that the regional governor has a period of one month from the receipt of the act to stop its execution and to take the matter to the court, whereas the APA envisages a period of fourteen days (art. 37). Considering that a 14-day period is applicable to the general administrative acts, too (art. 13, par. 2 of the SAC Act), there are no reasonable grounds to formulate a longer period of appeal against individual administrative acts of municipalities. As to the issue of which types of individual administrative acts that may be subject to control, art. 2 of the APA shall be applied: acts, which are "individual administrative acts in the sense of the APA" only.

Concerning the control of the actions of local self-government bodies and local administrations, art. 144 of the Constitution contains no provision that gives such authority to the regional governors.

To conclude, the following inferences can be made de lege ferenda:

a) the individual administrative acts of mayors of municipalities may be appealed against by the regional governor in conformity with the conditions and the order established by the APA;

b) the regional governors may contest normative and general administrative acts of the municipal council before the Supreme Administrative Court inasmuch as there is no other special provision to that effect;

c) the appeal shall not stop the execution, unless the court decides otherwise;

d) normative acts of municipal councils may be appealed against with no restriction in time;

e) the general administrative acts may be appealed against within a period of 14 days from the promulgation of the act in accordance with the law;

f) the regional governor may stop the execution of illegal individual administrative acts of municipal councils, and refer them to the respective district court within a period of 14 days from their receipt. The appeal shall be tried in conformity with the APA.

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* At its fifth session in May 1998, the Congress of Local and Regional Authorities in Europe paid special attention to the need for improving this specific legislative area. See Report on the situation of local and regional self-government in the Republic of Bulgaria. Congress of Local and Regional Authorities of Europe. Fifth session. Strasbourg, 1998, p. 13 - 16.

** Article 32. par. 2, 2nd sentence of the Administration Act indicates that the appeal begins from the moment of "acknowledgment or awareness" of it by the regional governor. The deadline of filing an appeal cannot be fixed in the above-mentioned way, since the acts of mayors of municipalities are not sent to the regional governor ex officio (the above is true of the acts of municipal councils only - art. 22, par. 1, Local Self-Government and Local Administration Act ); hence, the acknowledgment or the awareness may take place even ten years after the act was issued. Therefore, the period which is fixed in art. 22 of the APA shall apply, whereby as far as the regional governor is concerned, that period shall start on the day on which he was advised of the act.