At the 16/17 December 2010 European Council a political decision was taken to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. On March 25, 2011 the European Council adopted the legal decision to amend article 136 TFEU by adding a new third paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”
The process of approval of this decision by the member states in accordance with their respective constitutional requirements as prescribed by article 48(6) has been completed and the amendment has entered into force on 1 May 2013.
What political/legal difficulties did Bulgaria encounter in the negotiation of the amendment of article 136 TFEU?
No political or legal difficulties were found during the research on the Bulgarian. The position of the Government during the negotiations was not made publicly available and, consequently, there were no debates at the National Assembly on the negotiating position of Bulgaria. The Decision of the European Council on 25 March 2011 was taken during the 24-25 March meeting when the Euro-Plus Pact was adopted. As it will be seen below, the Prime Minister only appeared in the National Assembly in the morning of 24 March 2011, right before his flight to Brussels, to state that Bulgaria will approve the Euro-Plus Pact but did not discuss the question of the amendment of Article 136 TFEU.
An official position of the Government, albeit post-negotiations, can be distilled from the explanations to the Decision of the Council of Ministers with which the Council of Ministers proposed to the National Assembly to ratify the European Council Decision on the amendment of Article 136 TFEU. These explanations state that with the amendment of Article 136 TFEU it would be possible for the Eurozone Member States to establish a stability mechanism which can be used when needed to guarantee the stability of the Eurozone as a whole. It was also pointed out that the amendment of Article 136 TFEU is part of the measures taken for managing the Euro crisis. In that context, some of the paragraphs read:
“Bulgaria notes the importance of the single currency for the European political and economic project and the significance of the commitment made by all Member States in support of the stability of the Eurozone.
Bulgaria supports the strengthening of the economic governance in the Eurozone with aim of managing the current debt crisis and creating sustainable solutions for avoiding such crises in the future. Considering the high level of integration of the European economies and their interconnectedness, the stability of the Eurozone is a question of primary importance for our State.
Bulgaria notes that the European Stability Mechanism will provide the necessary means of action in situations threatening the financial stability of the Eurozone as a whole as well as assist in preserving the economic and financial stability of the Union itself.”
These paragraphs can be seen as an expression of the position of Bulgaria towards the perceived role of the amendment of Article 136 TFEU.
How has the 136 TFEU Treaty amendment been approved in Bulgaria and on what legal basis/argumentation?
In order to contextualise this answer, an overview of the ratification procedure for international treaties in Bulgaria needs to be provided. This overview will include all actors that can be involved in it, even though not all of them were actually involved in the ratification process of the amendment of Article 136 TFEU.
According to the CRB, international agreements that are ratified in accordance with the constitutionally established procedure, promulgated and have come into force with respect to Bulgaria, form part of the domestic legislation of Bulgaria. These international agreements enjoy primacy over the national law norms which contradict them. The constitutionally established procedure is dispersed across several Articles, each of which deals with one of the actors. These Articles are supplemented by a law, where the CRB so requires.
To start with, the international agreements to which Bulgaria is a party are, procedurally, divided in two types – the ones that require ratification and the ones that do not. The international agreements which require ratification fall within the exclusive competence of the National Assembly provided in Article 85 CRB to ratify or denounce international instruments. Article 85(1) lists exhaustively nine situations in which the National Assembly must exercise its ratification powers. Those situations are when the international instruments:
“1. are of a political or military nature;
2. concern the Republic of Bulgaria’s participation in international organizations;
3. envisage corrections to the borders of the Republic of Bulgaria;
4. contain obligations for the treasury;
5. envisage the state’s participation in international arbitration or legal proceedings;
6. concern fundamental human rights;
7. affect the action of the law or require new legislation in order to be enforced;
8. expressly require ratification;
9. (new, SG 18/05) confer to the European Union powers ensuing from this Constitution.”
A special provision in Article 85(2) is dedicated to the last situation dealing with conferral of powers to the EU. In particular, it states that the ratification of such international treaty is to be adopted by a two-thirds majority of all members of the National Assembly. Article 85(3) states that international agreements ratified by the National Assembly are to be amended or denounced only by the procedures provided therein or in compliance with universally accepted norms of international law. Finally, Article 85(4) states that where an amendment to the Constitution is required by a conclusion of on international agreement such amendment must precede that conclusion. However, there is one caveat to the exclusive competence of the National Assembly, which relates to the power of the Grand National Assembly (GNA) to “resolve on any changes in the territory of the Republic of Bulgaria and ratify any international instrument envisaging such a change” How this relates to Article 85(1)(3) CRB is not going to be discussed here.
The Law on International Agreements (the LIA) further elaborates on the ratification procedure. Article 14 LIA exhaustively lists the different ways in which Bulgaria may express its will to be bound by international agreements. This can happen through ratification, affirmation, acceptance, accession, signing without the need for further ratification or affirmation, and through exchange of the instruments that comprise the international agreement. Where international agreements require ratification in accordance with the CRB, the Council of Ministers proposes to the National Assembly to ratify the international agreement through law.
Since the ratification happens through the adoption of a law by the National Assembly, the constitutional provisions relating to the procedure of adoption of laws is also applicable mutatis mutandis. According to Article 88 CRB, laws have to undergo two readings and be voted upon twice. However, exceptionally, the National Assembly may decide to conjoin the two voting procedures during a single session. The details for this exception are further elaborated in the Rules for the Organisation and the Activity of the National Assembly (the Rules).
However, before going into the voting procedures in the Rules, it is useful to take a look at the provisions governing the introduction of the draft laws in the National Assembly. In the current version of the Rules, Article 73(1) states that draft laws and their explanations are deposited to the President of the National Assembly. The explanations must include the expected consequences from the application of the proposed law. Where the draft laws relate to the membership of Bulgaria in the EU, the explanations must also point to the part of EU law requiring the legislation in question. The allocation of the draft laws to the permanent Committees is done by the President of the National Assembly. The President of the National Assembly also determines the leading Committee for each draft law. The leading Committee is leading in the sense that it has an increased role in the procedural management of a particular law during the procedure for its adoption as well as after its adoption.
Now, turning to the voting, Article 77(2) of the Rules states that the National Assembly can exceptionally decide to conjoin both voting procedures in one session. However, it continues, this rule is to be applied only when during the debate no proposals for amending the draft law have been put forward. No special voting rules apply for the decision to conjoin the voting procedures. With respect to the ratification process, Article 84 of the Rules is also worth mentioning. It is the only one dealing with ratification of international agreements. It states that in the case of draft laws for the ratification of international agreements, the text of the international agreement itself cannot be modified. Furthermore, reservations to multilateral agreements can be made only insofar as the agreements in question allow for reservations to be made. When Articles 77(2) and 84 of the Rules are read together it appears why international agreements are prone to be ratified within one session. The final touch on the ratification law is its promulgation in the SG by the President on the basis of Article 98(4) CRB, as is the procedure for laws in general. This promulgation is not, however, a defining point for the international agreement to become binding on Bulgaria. As such, the President cannot interfere with the will of the National Assembly to be bound at the point of promulgation.
The international agreements which do not require ratification have a less straightforward procedure to follow. According to Article 106 CRB, the Council of Ministers shall inter alia “affirm or denounce international treaties when authorized to do so by law”. However, Article 98 CRB states that the President of the Republic shall inter alia “conclude international treaties in the circumstances established by the law”. This division is an expression of the underlying principle of separation of powers and checks and balances in the CRB, which prevent the domination over the State functions by the political interests of the majority of the day. Again, the LIA provides further clarifications on the procedure and the actors involved in it. According to Article 9 LIA, international agreements can be concluded by the President and the Council of Ministers. In the case of the President, the conclusion happens after concordance with the Council of Ministers, depending on the importance and the subject of the international agreement or in accordance with the agreement reached between States on the status of the State authorities that will sign the international agreement in question. In the other case, the conclusion of an international agreement is done by the Council of Ministers taking into consideration the subject matter of the agreement and its provisions. Accordingly, while the competence to conclude the agreements is shared, the Council of Ministers seems to have the leading role. This leading role is subject to the competences of the two institutions as provided by the CRB.
The leading role of the Council of Ministers is further exemplified by three other provisions in the LIA. First, in Article 15(2) it is stated that when the CRB does not require for an international agreement to be ratified, the Council of Ministers affirms it. Secondly, in Article 17 it is stated that when an international agreement is meant to binding after a signature or accession without being followed by a ratification or affirmation the consent is given by the Council of Ministers and it is to be included in the decision for approving the agreement. Thirdly, in Article 18 it is stated that when an international agreement becomes binding on account of the exchange of instruments comprising this agreement the exchange is executed by the Minister of Foreign Affairs on the basis of a decision by the Council of Ministers.
Irrespective of whether an international agreement requires ratification or not, all international agreements may be subject to constitutional scrutiny before the BCC. The constitutional judicial review can be ex ante as well as ex post the ratification/conclusion of the international agreement. However, this is not readily evident when one looks at the CRB. This is because in Article 149(1)(4) CRB it is stated that the BCC has the power to rule on inter alia “the compatibility between the Constitution and the international instruments concluded by the Republic of Bulgaria prior to their ratification” (Emphasis added). The explanation for the ex post powers of the BBC is to be found in Decision 9 of 1999. In this Decision the BCC stated that the duly ratified and promulgated international agreements “can acquire the status and force of laws” and “[as with] all the laws in the state, these ratified international treaties should be subject to constitutional control under Article 149(1)(2) of the Constitution”. Accordingly, the BCC based its power of ex post constitutional review of international agreements on Article 149(1)(2) CRB which sets out the power to rule on the constitutionality of laws and other acts passed by the National Assembly. In the view of the BCC, the power in Article 149(1)(4) CRB to review the constitutionality ex ante does not preclude the power of ex post review. To the contrary, the former supplements the latter. The BCC continued by saying that
“the ratification act incorporates the international agreement and together they must be considered as one complete act which can be challenged for unconstitutionality in its entirety. In that respect it is rightfully maintained that the eventual unconstitutionality of the international agreement makes its act of ratification also unconstitutional”.
Finally, it is worth observing the position of the Bulgarian nationals in the framework of the ratification process. There are generally two ways in which the people of a given State could directly participate in a ratification process. These are to (1) initiate proceedings before a Constitutional Court or (2) to initiate and/or vote in a referendum. In Bulgaria only the second possibility is available as the right to initiate proceedings before the BCC is still limited to public institutions.
With regard to referendums, the CRB states very little. Article 42(2) CRB provides that the organisation and procedure for holding elections and referendums shall be established by law. The law dealing with referendums regulates also other rights to participate in the governance of the State and the regions such as the citizen’s initiative. However, only the part dealing with referendums is relevant for the present discussion. In Article 9(4) of that law it is stated that referendums which concern issues regulated by international agreements that Bulgaria has concluded can be convened only before the ratification of such agreements. Unfortunately, this law addresses neither the situations where an international agreement does not require ratification, nor the question whether the initiation of collection of signatures or other procedures that can lead to convening a referendum has a freezing effect on the ratification procedure.
The question of who can initiate a referendum is answered in Article 10 of that law. Proposals to the National Assembly for a referendum can be made by the Council of Ministers, the President, at least one-fifth of the national representatives, at least one-fifth of the municipal councils in Bulgaria, or by an initiative committee of citizens with voting rights, which has collected at least 200 000 signatures of citizens with voting rights. No special voting rules apply for the decision of the National Assembly to accept or not a proposal. The National Assembly is only obliged to adopt a decision for convening a referendum where the initiative committee has collected at least 500 000 signatures.
Having explained the constitutionally established procedure for ratification or otherwise acceptance of international agreements by Bulgaria, it is now pertinent to turn to the specific case of the amendment of Article 136 TFEU. The amendment was subject to ratification and as such (since it did not relate to changes in the territory of Bulgaria), on the one side, the relevant institution involved was the National Assembly. On the other side, it was the Council of Ministers and not the President that concluded the agreement. Furthermore, the ratification did neither include recourse to the BCC nor a referendum.
On 25 March 2011 the Prime Minister – Boyko Borissov – supported the Decision of the European Council for amending Article 136 TFEU. More than a year later, on 15 June 2012, the Council of Ministers adopted a Decision with which it approved the European Council Decision and proposed to the National Assembly to ratify it. The constitutional basis for the proposed ratification was Article 85(3) CRB. As explained supra this Article states that Treaties ratified by the National Assembly are to be amended or denounced only by the procedures provided therein or in compliance with universally accepted norms of international law. As such the ratification of the Decision was seen as, in constitutional terms, for exactly what it was – an amendment of an international agreement though the procedure provided therein. It was not viewed as a new international agreement on its own. Furthermore, it was also not viewed as an international agreement conferring powers stemming from the Constitution to the EU which requires a two-thirds majority in the National Assembly under Article 85(2) CRB.
In the National Assembly, the draft ratification law was discussed in the Committee on Budget and Finance, on External Policy and Defence and on European Affairs and Oversight of the European Funds of which the latter was the leading one. All three Committees in their reports proposed to the National Assembly to ratify the European Council Decision on the basis of Article 85(3) CRB. In its plenary session on 13 July 2012, the National Assembly approved the proposed draft law and ratified the European Council Decision on the proposed legal basis. The result of the first vote was 89 ‘for’, 2 ‘against’ and 16 ‘abstaining’. As there were no amendments proposed to the draft law, the National Assembly, on the basis of Article 70(2) of the then applicable version of the Rules, conjoined the two voting procedures within the same session. The result of the second vote was 84 ‘for’, 2 ‘against’ and 14 ‘abstaining’. The law ratifying the European Council Decision was promulgated in the SG by the President on the basis of Article 98(4) CRB on 23 July 2012.
What political/legal difficulties did Bulgaria encounter during the ratification of the 136 TFEU Treaty amendment?
The ratification of the amendment of Article 136 TFEU went through the whole process without problems or controversies in either of the institutions involved. It went so smooth that after the draft law was presented in the plenary session of the National Assembly no national representatives joined the discussion and the draft law went straight to voting. As explained supra, even the two voting procedures were conjoined in one session. However, in the opinion of the author, it is still interesting and worth looking at the explanations to the draft law provided by the Council of Ministers, the reports of the three Committees that considered the draft law as well as what was said in the National Assembly when the draft law was presented.
In the explanations attached to Decision № 497 of the Council of Ministers, it is stated that Bulgaria recognises the importance of the single currency for political and economic European project as well as the importance of the commitment made by all Member States for stability in the Eurozone. It is also stated that that Bulgaria supports the increase in economic governance in the Eurozone, which is meant to manage the debt crisis and to create stable solutions for avoiding the repetition of such crisis. For Bulgaria, the stability of the Eurozone is an issue of primary importance, considering the high level of integration and interconnectedness of the economies within the EU. The ratification of the amendment of Article 136 TFEU is seen in the explanations as an expression of support for the strategy of the EU for overcoming the debt crisis, which includes the European Stability Mechanism (ESM) and stabilizing the Eurozone. On the basis of these explanations the Committees considered the ratification proposal.
The first report was adopted by the Committee on Budget and Finance on 28 June 2012. The draft law was presented by the Director General for European Affairs in the Ministry of Foreign Affairs. The report largely reiterated the explanations to the draft law without adding anything new. The verbatim record of the meeting shows that only question asked was from Plamen Oresharski (Coalition for Bulgaria). The question was why the amendment is being considered when Bulgaria is not a Eurozone Member State? In the answer of the presenter it was underlined that the amendment of Article 136 TFEU, while connected to the ESM, does not entail that Bulgaria is getting involved in the latter by ratifying the former. The amendment procedure in the Lisbon Treaty requires the approval of all Member States, including Bulgaria, and Bulgaria supports it because it is needed to pave the way for the ESM Treaty, which concerns the Eurozone Member States only. After the question was answered, the draft law was voted upon and the results were 13 ‘for’, 1 ‘against’ and 6 ‘abstaining’. No explanations of the negative or abstaining votes were provided.
The other two reports were adopted on 4 July 2012 in a joint session. The draft law was presented by the Deputy Minister of Foreign Affairs. As the report was adopted in a joint session the verbatim record of the two Committee meetings is the same. As such it is better to consider the results of the work of the two Committees together. The report of the Committee on External Policy and Defence reiterated almost word by word the explanations of the draft law and then concluded by saying that the draft law does not contradict the principles of the foreign policy of Bulgaria. The report of the leading Committee on European Affairs and Oversight of the European Funds also restated to a great extent the draft law explanations. Two other things were also mentioned. First, it was pointed out that the Bulgarian currency – the Lev – is fixed to the Euro and that the stability of the Euro and its resistance towards future negative influences is of great importance for the Bulgarian economy and finances. Secondly, the report concluded that the proposed ratification law corresponds to the obligations of Bulgaria flowing from its full membership in the EU.
The verbatim record, however, is more insightful. While there were no questions posed after the draft law was presented, one of the Committee members made an explanatory statement on why he was going to vote against the ratification. The author considers that a translated quotation in full of this statement is needed in order to avoid any confusion as to what was said. The Committee member stated that:
“Political party ‘ATAKA’ will vote against this ratification. I will state our motives. We are consistent in our position. The reason to vote against the ratification is that in this way with the accession of Bulgaria to the Fiscal Pact (sic!) the sovereignty of Bulgaria is violated – the National Assembly and the Government appear redundant. Besides, lately the Chancellor Merkel as well as the President Hollande and David Cameron stated clearly that the Fiscal Pact is not the panacea which will solve the debt crisis. This is our conclusion. We are led by the idea that Bulgaria must have the possibility for self-development and not to join the scheme of Europe on different speeds – two or three or more. We are against a budget deficit being fixed at 3% from the GDP and a sovereign debt not going higher than 60%. In this way we consider that this decision does not correspond to our demands to have immediate quick increase of the income of the population. These are our motives in short; we will present them in further detail in the plenary hall.”
The President of the Committee, before she put the proposal to a vote, responded to this statement with a clarification. She suggested to the Committee members while preparing for the plenary hall to keep in mind that what was being considered was an amendment to the TFEU and not the Fiscal Pact. Furthermore, she pointed out that through this ratification Bulgaria gives its support for the collective effort to stabilise the Euro and overcome the debt crisis and that the amendment was ratified by 19 Member States already, at that time. Following these exchanges the draft law was voted upon and the results were 9 ‘for’, 0 ‘against’ and 2 ‘abstaining’. The voting results in the Committee on External Policy and Defence were 9 ‘for’, 1 ‘against’ and 3 ‘abstaining’. No explanations of the abstaining votes in the two Committees were provided.
These reports were read in the National Assembly when the draft law was presented in plenary. The Minister of Foreign Affairs Nikolay Mladenov presented the law with a comprehensive statement. In his statement the Minister started by noting the legal stability that the amendment to Article 136 TFEU provided to the ESM Treaty which is one of the two most fundamental instruments (the other being the Fiscal Pact) for dealing with the Euro crisis. The Minister also pointed out that the two very important questions of (1) competence extension of the EU and (2) the financial obligations of Bulgaria are both answered in the negative. Having said that the Minister highlighted that Bulgaria has a great interest in the stability of the Euro and will, to the maximum extent, follow closely all developments in that regard.
Then, the Minister turned to a few issues not directly related to the ratification. Firstly, the national representatives were urged to follow the discussions for the future of the Economic and Monetary Union (EMU), such as the ones on the banking union, bank supervision and deposit guarantees within the Eurozone. Secondly, the Minister stated that in the beginning of the negotiations on these proposals Bulgaria took the constructive position that there must be clear rules which include all 27(now 28) Member States in the discussion for the future of the EMU. The position was against mechanisms which would permanently exclude some Member States from the decision-making process. Thirdly, the Minister stated that, while the discussions how to solve the Euro crisis will continue on, Bulgaria must be attentive to the, crucial for it, question of how the proposals from the Member States or the Commission will contribute to the stability of the internal market. It was in the interest of Bulgaria that the internal market was not only stabilised but also extended to new areas, particularly, the single market of digital services. The reason for the Minister to go beyond the scope of the draft law was explained to be that when the ratification decision is being made there should be a clear understanding of the broader picture within which it stands. After this introduction the draft law was voted and adopted, as explained in the answer to Question V.2. It should be noted that the promise of ATAKA’s national representative in the Committee on External Policy and Defence to further explain the party’s motives for voting against was not kept and no explanations of the negative or abstaining votes was provided.
Is there a (constitutional) court judgment in Bulgaria on the 136 TFEU Treaty amendment?
The amendment of Article 136 TFEU has not been litigated at the BCC.
What other information is relevant with regard to Bulgaria and the 136 TFEU Treaty amendment?
No other relevant information.