THE REPUBLIC OF BULGARIA

 

 

CONSTITUTIONAL COURT

___________________________________________________________

 

 

RULING N 33

Sofia, 8 December, 1998

 

 

The Constitutional Court in a panel of:

Chairman: Zhivko Stalev

Members: Assen Manov Stefanka Stoyanova

Tsanko Khadjistoychev Ivan Grigorov

Stanislav Dimitrov Todor Todorov

Nedelcho Beronov Gueorguy Markov

Dimitar Gotchev Margarita Zlatareva,

and secretary and record-keeper Rossitza Topalova considered in camera on December 1 and 8, 1998 constitutional case N 30 of 1998 reported by judge Nedelcho Beronov.

The case was brought before the Court on October 2, 1998 upon a demand by 61 members of parliament of the 38th National Assembly.

The demand is to declare unconstitutional the following provisions of the Telecommunications Act (TA), published in the State Gazette's issue 93 of August 11, 1998:

- art. 6; art. 8, sec. (1) and (2); art. 11, sec. (2); art. 23, sec. (2); art. 27, point 5; art. 44; art. 45; art. 47; art. 48; art. 60, sec. (2); art. 62, sec. (2); 10; 11, sec. (2); 12; 14, sec. (4); 17;

- art. 9 and art. 11 regarding the words "within the Council of Ministers"; art. 27, sec. (4) regarding the words "and rendition of public telecommunications services through the radiofrequency spectrum" and "by the Council of Ministers"; art. 27, point 6 regarding the words "and approval by the Council of Ministers"; art. 42 regarding the words "shall make a proposal before the Council of Ministers"; art. 56 regarding the words "upon decision by the Council of Ministers"; art. 62, sec. (3) regarding the words "upon approval by the Council of Ministers"; art. 62, sec. (7) regarding the words "of the Council of Ministers";

- the headings "Management of Telecommunications Activities" of Chapter Two and "Management" of the Title One of the said Chapter Two.

The applicants consider that the stated provisions of TA contradict art. 6, sec. (2); art. 19, sec. (1) and (2); art. 37, sec. (1); art. 39, sec. (1); art. 40, sec. (1); art. 41, sec. (1); art. 105; art. 106; art. 108; art. 111 and art. 112 of the Constitution, as well as texts thereof providing for mandate terms for certain bodies and offices (art. 64; art. 93; art. 95; art. 129, sec. (3); art. 130.)

With a definition of October 9, 1998 the Constitutional Court has admitted the demand to substantive consideration, and has constituted as interested parties the National Assembly, the Council of Ministers, the National Radiofrequency Spectrum Council (NRSC), the State Telecommunications Commission, the Posts and Telecommunications Committee, the National Council on Radio and Television, the Union of Bulgarian Journalists, the "Free Speech" Civil Forum, the Center for Independent Journalistics, the Association of Bulgarian Private Radiostations, the Association of Private Radio and Television Operators, the Bulgarian Association of Licensed Cabel Operators, the National Organization of Cabel Operators, and the Bulgarian Telecommunications Company.

The opinions of the National Assembly, the Council of Ministers, the Posts and Telecommunications Committee, the State Telecommunications Commission (STC), the Bulgarian Telecommunications Company (BTK), and the National Organization of Cabel Operators maintain that the demand to declare unconstitutional the stated provisions of TA is completely groundless.

The National Council on Radio and Television (NCRT) has submitted an opinion on the demand regarding the licensing of telecommunications and radio and television operators, respectively the powers of the two regulatory bodies - STC and NCRT - stating that the demand is groundless since it mixes program and distribution licences.

The opinions of the Union of Bulgarian Journalists and of the "Free Speech" Civil Forum only refer to those TA provisions regulating the licensing of radio and television operators, and state that these provisions are unconstitutional.

The Association of Bulgarian Private Radiostations has submitted an opinion to the effect that all provisions of TA referred to in the demand by the members of parliament contradict the Constitution.

According to the opinion of the Center for Independent Journalistics, licensing of radio and television activities should not be a part of STC's competency and should not be coordinated with, or approved by, the Council of Ministers. The opinion also states that the principle of mandate terms is related to the powers and functions of elected bodies and that, therefore, bodies appointed by the executive branch may not have mandate terms.

The Constitutional Court has also received the records of the first and second voting on the draft TA by the National Assembly.

After discussing the considerations set out in the demand and in the parties' opinions the Constitutional Court hereby finds:

Regarding title one of the demand.

 

According to the applicants, the heading of Chapter Two "Management of Telecommunications Activities"; the heading of Title One of the said Chapter Two "Management", and the provisions of art. 6; art. 8, sec. (1) and (2); art. 9 regarding the words "within the Council of Ministers"; art. 11, sec. (1) - "within the Council of Ministers"; art. 27, point 4 - "by the Council of Ministers"; art. 27, point 6 - "and approval by the Council of Ministers"; art. 42 - "shall make a proposal before the Council of Ministers"; art. 44; art. 45; art. 47; art. 48; art. 56 - "upon decision by the Council of Ministers"; art. 60, sec. (2); art. 62, sec. (3) - "upon approval by the Council of Ministers"; and art. 62, sec. (7) - "of the Council of Ministers" contradict art. 105, 106, and 108 of the Constitution. In corroberation of this opinion the applicants point out that the Constitution does not assign the Council of Ministers to the direct management of commercial activities, even less so of private sector ones. According to the applicants, TA assigns the Council of Ministers to direct functions of a ministry or committee. It would be correct in this case to speak of telecommunications policy and regulation of telecommunications activities, but not of management. The demand states that although decisions to grant and revoke licenses are a prerogative of the relevant authorized body - STC - pursuant to TA texts these functions are assigned to the Council of Ministers, thus transforming STC into a body ancillary to the government to carry out the decision imposed by the latter.

The Constitutional Court finds that the headings of the stated chapter and title of TA would have been unconstitutional if they had provided for powers for the Council of Ministers that the Constitution does not provide for. The same title and chapter of TA contain provisions laying out two powers of the Council of Ministers'. The first provision is art. 7 which is not included within the demand by the group of members of parliament. Pursuant to this provision, "The Council of Ministers shall adopt a sector policy in telecommunications, whereby it shall determine the state policy in this field." This is entirely in accordance with art. 105 of the Constitution, furthermore, as a scarce resource determined for the Republic of Bulgaria under international agreements the radiofrequency spectrum is distributed for civil needs, and for the needs of the defense and the security (art. 12, sec. (1), TA). The second provision is art. 8, TA which establishes the right of the Council of Ministers to approve of the issuance of licences for construction of telecommunications services through use of the radiofrequency spectrum. It is against this power of the Council of Ministers' that the main objections of the applicants are. As will be elucidated in the following part of the motives, this power has its constitutional basis in art. 18, sec. (3) and (5) of the Constitution.

The provisions of Chapter Two and its Title One, TA do not regulate direct management of commercial activities on the part of the Council of Ministers, but execution of powers inherent to the executive branch. The management of the state is inherent namely to the executive branch, including its supreme body - the Council of Ministers. In order to manage and carry out the interior and foreign policies of the country (art. 105, sec. (1) of the Constitution) the Council of Ministers performs management activities thus exercising state political powers within the limits of its discretion set out by the Constitution. The variety of bodies and activities whereby the management of the state is being executed is one of the most characteristic traits of the executive branch as opposed to the legislative and judicial powers (Ruling N 5 of 7 July, 1994 on constitutional case N 3\1994 published in the State Gazette, issue N 58\1994.)

The headings of Chapter Two and its Title One, TA are in accordance with the powers of the Council of Ministers in managing the country provided for under the Constitution, wherefore, the demand in this its part is to be rejected.

The Constitutional Court is not of the opinion of the applicants on the unconstitutionallity of the TA provisions on participation on the part of the Council of Ministers in the issuance, amendment, supplementation, suspension, termination, and revocation of licences. Under all provisions of TA stated in the first title of the demand the Council of Ministers' participation in licensing in the form of approval or permission is only provided for when telecommunications activities are to be executed through the radiofrequency spectrum. The state alone may exercise sovereign rights over this spectrum (art. 18, sec. (3) of the Constitution) and she alone may grant licences for the execution of activities entailing the use of the radiofrequency spectrum (art. 18, sec. 5 of the Constitution). The state may not renounce its exclusive constitutional rights and surrender them to a non-state body since that would be a violation of the Constitution. Art. 18, sec. (3) and (5) of the basic law only allow for legislation that provides for the state to license, through a state body appointed by law, any activities carried out through use of the radiofrequency spectrum.

The constitutions of the Member States of the European Union do not regulate the radiofrequency matter. These constitutions contain no provisions analogous to art. 18, sec. (3) and (5) of the Constitution of the Republic of Bulgaria, wherefore, the TA provisions stated in the first title of the demand can not be compared to the European legislation and the Directives of the European Parliament and of the Council of Europe.

In regulating telecommunications activities it is not the right of ownership over the means whereby such activities are being carried out which is of import but what rights are being granted. If these are related to the radiofrequency spectrum the state, and not a non-state body, shall exercise sovereign rights over the spectrum and shall grant licences for its use.

The Constitution's art. 18, sec. (5) does not specify the body through which the state shall grant licences. With a view of the nature of licensing as a state activity, there is no constitutional obstacle for the legislator to assign it to the executive branch, respectively to its supreme body - the Council of Ministers which directs and carries out the internal policy, and ensures public order and the national security (art. 5 of the Constitution) for whose needs a part of the radiofrequency spectrum is used.

Regarding title two of the demand.

The applicants consider that art. 11, sec. (2); art. 23, sec. (2); and 17, TA contradict art. 111 and 112 of the Constitution in establishing mandate terms for the management bodies of NRFC and STC. According to the applicants, the constitutional legislator has adopted the principle that only elected bodies may be assigned mandate terms, and not appointed ones. The demand states that there is no constitutional basis for the Council of Ministers, having no mandate term itself, to appoint bodies of its which not only have a mandate term but one longer than that of the National Assembly which has elected the government.

The Constitutional Court finds that the complaints under title two of the demand are groundless.

Art. 111 and 112 of the Constitution are not relevant in respect with the provisions of TA disputed in this title of the demand. Art. 111 provides for termination of the Council of Ministers' powers, and art. 112 - for voting trust in the government by the National Assembly. From the outset, the Constitution does not specify a term for the mandate of the Council of Ministers. The term of its mandate depends on the National Assembly's trust. It is possible that the government continues to carry out its functions even after the mandate of the parliament which elected it has been terminated (Ruling N 4 of June 21, 1994 on constitutional case N 8\94, published in the State Gazette, issue 56 of 1994.)

There is no constitutional provision to preclude the possibility of mandate terms for other bodies apart from those expressly stated by the Constitution. If there is no prohibition, there can be no violation, no unconstitutionallity. In the cases stated under its provisions the Constitution requires mandatory mandate terms for certain bodies. This does not mean that in other cases the National Assembly may not provide by law for mandate terms.

The Court can not share the applicants' opinion that pursuant to the Constitution only elected bodies may have mandate terms, and not appointed ones. This opinion contradicts art. 147, sec. (1) of the Constitution under which a number of the Constitutional Court judges shall be appointed by the president with a mandate term of 9 years.

In these constitutionally provided for cases of appointment the mandate terms of the stated offices are longer than that of the appointing president.

A longer mandate term, especiallly when coupled with rotation, as it is for the members of STC ( 17 of the Transitional and Conclusive Provisions of TA), guarantees continuity and independence from potential political interference and changes in the body which appointed or elected those officials.

Regarding title three of the demand.

The applicants claim that art. 27, point 4 regarding the words "and rendition of telecommunications services through the radiofrequency spectrum"; art. 27, point 5; and art. 62, sec. (2), TA contradict art. 37, sec. (1); art. 39, sec. (1); art. 40, sec. (1); art. 41, sec. (1) of the Constitution. According to the applicants, the grant of a licence for creation of radiotelevision production and/or broadcasting thereof depends exclusively on STC which is a state body within the Council of Ministers, on its own part a politicized body, and there are no guarantees that in making its decisions in regard with licensing it will not be influenced by political, instead of expert, considerations. According to the applicants, this is a violation of the freedoms of conscience and thought, and endangers the right to impart opinion and information, and makes the electronic media unfree.

The Constitutional Court in its Rulings N 7 and N 21 of 1996 on constitutional case N 1/96 and N 19/96 has declared that regardless of its value the right to freely express and impart opinion is not absolute. Since the Constitution protects other values, respectively rights and interests, too, whose exercise may place them in competition with the considered right, it is justified to allow for the limitation of the latter. The press and the other media, especially the electronic media which are in a peculiar position due to legal, financial, technical, and technological reasons, must be discriminated between. The freedom of the electronic media has also objective legal aspects which call forth an active interference on the part of the state through legislative means. Use of the radiofrequency spectrum by the electronic media imposes compliance with art. 18 of the Constitution. Pursuant to sections (3) and (5) of this constitutional provision the state shall exercise sovereign rights over the radiofrequency spectrum, it being the environment for broadcasting of programs emitted by the radio and television. Therefore, the state's interference in the distribution of the radiofrequency spectrum is inevitable (Ruling N 7 of 4 June, 1996 on constitutional case N 1/1996, published in the State Gazette, issue N 55/1996). It was pointed out in the motives regarding title one of the demand that the state may not transfer to a non-state body these constitutionallly assigned powers of its. The state through bodies stated under TA grants opportunities for the use of the radiofrequency spectrum. Since use thereof will be for radio and television activities regulated under the special Radio and Television Act (RTA), a decision by the regulatory body provided for under RTA - NCRT, assigned to monitor the adherence to the requirements for programs' contents from the point of view of aesthetical qualities, national and cultural variety, etc. - is also necessary. Whereas licences under TA are granted for construction of telecommunications networks, and for use and distribution of the radiofrequency spectrum, the NCRT's decision under RTA regards the content of the services to be rendered through the radiofrequency spectrum. TA's provisions, more specifically art. 27, point 4, 5, and 6, regard licences for construction of telecommunications networks and for rendition of services entailing the use of the radiofrequency spectrum. Control over the development, creation, and broadcasting of radio and television programs for the purposes of 1, point 12 of the Additional Provisions of TA does not fall within the scope of powers of STC, wherefore, art. 27, point 5, TA only regards licences for construction of telecommunications networks and for rendition of services entailing the use of the radiofrequency spectrum. As regards the radio and television, the Constitution's art. 40, sec. (1) provides for their transformation into autonomous public institutions, free from the tutelage of a state body (Ruling N 7 of 1996 on constitutional case N 1 of 1996.) Therefore, regulatory functions in respect with the radio and television under RTA are assigned to NCRT which is not a state body (Ruling N 21 of 14 November, 1996 on constitutional case N 19/1996, published in the State Gazette's issue N 102/1996.)

The TA provisions disputed under this part of the demand combine the constitutional requirement that the state grant licences for use of the radiofrequency spectrum for radio and television activities (art. 18, sec. (5)) with the requirement of the Constitution's art. 40, sec. (1) that the radio and television be transformed into autonomous institutions directed by a non-state body.

The Constitutional Court is not of the opinion that the state's powers over the radiofrequency spectrum are limited to a legislative determination of the rules for use of the radiofrequency spectrum, and that under the disputed provisions of TA the state has exceeded its legislative role and has seized the practical execution of licensing. This view is in obvious disaccord with art. 18, sec. (5) of the Constitution pursuant to which the state, and not a non-state body, shall carry out licensing, and a law shall determine the terms and procedure under which the state shall grant its licence. As the Constitutional Court has already pointed out in its Ruling N 7/1996 on constitutional case N 1/1996, state interference in the distribution of the radiofrequency spectrum is inevitable, whence, freedom of the electronic media under art. 40, sec. (1) of the Constitution does not preclude intervention on the part of the state. The principle of art. 40, sec. (1) will be complied with if the terms and procedure for licensing are public, accessible, and preliminarily established (Ruling N 7 of 1996) which is provided for in this case under TA in implementation of art. 18, sec. (5) of the Constitution.

The opinion of the applicants that licences for radio and television activities should be granted by a body independent from the state contradicts art. 18, sec. (5) of the Constitution which states that only the state shall have the right to grant licences in cases of use of the radiofrequency spectrum.

As stated under Directives 91/13/EC; 97/51/EC; 90/387/EEC; and 90/388/EC of the European Parliament and of the Council of Europe, granting of licences for activities in the telecommunications spectrum must be carried out in a manner as to guarantee the independence of the regulatory body from operators (telecommunications organizations) through separation of regulatory from operators' functions; through legal separation and functional independence of the regulatory bodies from operators. TA (art. 23, sec. (3)) is in accordance with these Directives regarding the relations between licensor and licensee for use of the radiofrequency spectrum .

On the stated grounds the demand in this its part is to be rejected.

Regarding title four of the demand.

According to the applicants, 14, sec. (4) of the Transitional and Conclusive Provisions of TA by declaring the licences issued after the Concessions Act's entering into force invalid places the incumbents under legal conditions for commercial activity unequal to those for the persons stated under sec. (1) of the same article who have been licensed before TA's entering into force. Therefore, the applicants consider that the provision of 14, sec. (4), TA contradicts art. 6, sec. (2) and art. 19, sec. (2) of the Constitution.

The Concessions Act (CA), as follows from its heading and its art. 1, regulates the terms and procedure for granting of concessions, not of licences. It provides for concessions to be granted for both sites and activities, including telecommunications activities (art. 2, sec. (1); art. 4; and art. 5, point 3).

During the period from CA's entering into force till the repeal of its art. 4, sec. (1), point 4 and art. 5, point 3 by 3 of the Transitional and Conclusive Provisions of TA it has been possible for telecommunications activities to be executed on the grounds of concessions granted, but not on the grounds of licences issued. During the same period it is CA that has been applicable, and not a law temporally preceding it which regulated the same social relations and which was silently repealed in this its part according to the rules for temporal effect of legal norms. The same legal matter could not have been regulated differently by normative regulations providing for issuance of telecommunications activities licences during that period.

14, sec. (4) of the Transitional and Conclusive Provisions of TA, disputed by the demand, refers to telecommunications activities carried out on the grounds of a licence during the stated period, that is, in violation of CA. Being contradictory to the then existing legislation such licences were illegal which 14, sec. (4) takes heed of in in providing for application for licence under the general procedure set out under TA.

A person basing her (his) claims on an illegal act may not be placed under equal conditions for commercial activities with the rest of the citizens and legal persons who derive their rights from legal acts. Therefore, there is no violation of art. 6, sec. (2) and art. 19, sec. (2) of the Constitution. The demand in this its part is to be rejected.

Regarding title five of the demand.

In the last part of the demand the applicants state that the provisions of 10; 11; and 12 of the Transitional and Conclusive Provisions contradict art. 19, sec. (1) and (2) of the Constitution by limiting the right of choice of private operators, and by obligating these to hire lines from BTK only, which is licensed to execute activities of rendition of ordinary telephone services and of letting out of lines, a state monopoly being established over these activities until 31 December, 2002.

The Constitutional Court has had the chance to declare in an interpretative Ruling N 2 of 6 February, 1996 on constitutional case N 26/95 published in the State Gazette's issue N 16/96, that art. 18, sec. (4) of the Constitution enumerates exhaustively the commercial activities over which the state may by law establish a monopoly. The enumeration includes the national telecommunications networks. As pointed out by the applicants, "Telecommunications networks - state property as of the present moment are the telecommunications networks of the Bulgarian Telecommunications Company." These are national, they encompass the entire country, and not only separate regions. State monopoly may be established over them, but not over the networks of non-state organizations. The motives to Ruling N 2 on constitutional case N 26/95 state that the constitutional legislator, on one hand, requires on principle that uniform legal conditions for commercial activities be established for all subjects and that monopolies be averted (art. 19, sec. (2)), and, on the other, that state monopolies be provided for by law only in fields of economic activities exhaustively enumerated by the Constitution itself (art. 18, sec. (4)). A state monopoly represents an exception from the constitutional market economy principles, clearly formulated under art. 19, sec. (1) and (2) of the Constitution. A monopoly creates not only different economic but also different legal conditions for commercial subjects. Since 10 establishes a state monopoly on the grounds of art. 18, sec. (4) of the Constitution, the limitations following therefrom for commercial activities ( 11, sec. (2)) during the period a state monopoly has been established for ( 12) are not contradictory to the Constitution. Since a law (CA) provides for a state monopoly in an economic field included in the exhaustive enumeration under art. 18, sec. (4) of the Constitution, the requirement for equal legal conditions for commercial activities (art. 19, sec. (2)) is not applicable in this field.

The provisions of 10; 11, sec. (2), and 12 of the Transitional and Conclusive Provisions are in complete accordance with the stated provisions of the Constitution and with the mandatory interpretation thereof by the Constitutional Court (art. 149, sec. (1). point 1 of the Constitution), wherefore, the demand in this its part is to be rejected.

On the stated considerations and on the basis of art. 149, sec. (1), point 1 of the Constitution, the Constitutional Court

 

 

RULES:

 

To reject the demand by 61 members of parliament of the 38th National Assembly to declare unconstitutional provisions of the Telecommunications Act, published in the State Gazette's issue N 93 of August 11, 1998, as follows:

- entirely art. 6; art. 8, sec. (1) and (2); art. 11, sec. (2); art. 23, sec. (2); art. 27, point 5; art. 44; art. 45; art. 47; art. 48; art 60, sec. (2); art. 62, sec. (2); 10; 11, sec. (1); 12; 14, sec. (4); 17;

- partly art. 9 and art. 11 regarding the words "within the Council of Ministers"; art. 27, point 4 regarding the words "and rendition of public telecommunications services through the radiofrequency spectrum" and "by the Council of Ministers"; art. 27, point 6 regarding the words "and approval by the Council of Ministers"; art. 42 regarding the words "shall make a proposal before the Council of Ministers"; art. 56 regarding the words "upon decision by the Council of Ministers"; art. 62, sec. (3) regarding the words "upon approval by the Council of Ministers"; art. 62, sec. (7) regarding the words "of the Council of Ministers";

- the headings "Management of Telecommunications Activities" of Chapter Two and "Management" of Title One of the said Chapter Two.

Judge Dimitar Gotchev signed the present ruling with a dissenting opinion on art. 27, point 5; art. 62, sec. (2), and 14, sec. (4), and judge Todor Todorov - with a dissenting opinion on 10, letter "b"; 11, sec. (2), and 12 of the Transitional and Conclusive Provisions.

 

Chairperson:

Zhivko Stalev