By its Decision No. 14 of 12.10.2021 (promulgated in State Gazette No. 88 of 22.10.2021), the Constitutional Court (CC) ruled that orders of the  Ministry of Environment and Water (MoEW) for designation of protected areas under the Biological Diversity Act (BDA) may not be appealed. The Constitutional Court judges unanimously rejected the request submitted by a three-member panel of the Supreme Administrative Court (SAC) for annulment of the provision of Art. 7 of BDA thus confirming that the orders for the designation of protected areas are final and not subject to appeal. It should be noted that the issuance of an order under Art. 12, Para. 7 of BDA concludes the procedure for setting the boundaries of protected areas as part of the European ecological network  NATURA 2000, as well as for prohibiting or restricting activities which are incompatible with the nature conservation objectives of the respective protected area.

In its decision, the CC largely relies on the state’s obligation under the Constitution and the EU law to protect the environment and preserve wildlife.

The proceedings before the CC have been initiated at the request of a tree-member panel of the Supreme Administrative Court to establish the  unconstitutionality of the quoted provision of the Biological Diversity Act as contrary to Art. 17, Para. 1 and Para. 3 of the Constitution, which guarantee  the protection and inviolability of private property.

The numerous opinions presented by ministries, the prosecutor’s  office, the Supreme Bar Council, NGOs and academics in the course of the  proceedings are conflicting, but the prevailing view is that the text of Art.  12, Para. 7 of BDA contradicts the Fundamental Law since it “disproportionately” restricts the right to property, although in principle it is permissible for environmental protection to result in a restriction of the right to property.

However, the CC bases its decision on the view that “biodiversity is a supreme value for both present and future generations...” and that “the BDA plays a crucial role in establishing a national system of safeguards and incentives to prevent negative impacts on the environment from human activities, which is a high priority in the context of extreme pressure on the environment”.

In its judgment, the CC explicitly accepts that the two EU nature directives[1] aim to ensure a high level of protection of biodiversity, defined by them as European natural heritage, and that the value they protect, namely biodiversity, is of substantial public interest. Following its line of reasoning,  the CC examines the case law of the European Court of Justice on the application of the nature directives and points out that the EU Court of Justice has rejected member states’ arguments in justifying exceptions to the application of protective measures on economic grounds. The CJEU has expressly held that the provisions of the national law which restrict the possibility of adopting protective measures in order not to interfere with the economic use of the areas concerned is generally incompatible with the Habitats Directive.

In rejecting the request, the CC reiterated its consistent position that “In principle, a restriction on a fundamental right is permissible, but only when necessary to protect supreme constitutional values” (Decision No. 10/2017; Decision  No. 3/2019; Decision No. 11/2021). The European understanding of the environment and biodiversity as a common European value and common natural heritage has been adopted by  the national legislator in the BDA and corresponds to the constitutional imperative of Art. 15 of the Fundamental Law – “The  Republic of Bulgaria shall ensure the protection and reproduction of the environment, the conservation of living nature in all its variety, and the sensible utilization of the country’s natural and other resources.”.

As regards the view maintained by the three-member panel of the SAC, that the contested provision also contradicts Art. 120, Para. 2 of the Constitution as it deprives owners of judicial control over an administrative  act affecting their rights and interests, the CC recalls that this right is not absolute and may be limited under certain conditions – where necessary to  protect supreme constitutional values relating to particularly important public interests and must meet the requirement of proportionality. The CC held  that, given the substantive characteristics of the protected areas and the values protected by their designation, the orders designating them and imposing certain restrictions on activities therein, protect the public interest and ensure the values protected by the Constitution (Art. 15, Art. 20, Art. 55 of  the Fundamental Law).  

In its reasoning, the CC also explicitly recalled the logic of access  to justice adopted in the EU legislation regarding biological diversity. The  approach taken by the EU is to involve affected parties – including land owners and persons managing land plots – as early as possible in the decision-making process on this issue and thus to ensure access to justice for individuals and NGOs regarding environmental matters. The CC considers that the national legal arrangement it the area of biodiversity in BDA is fully consistent with the spirit of this approach (the Council of Ministers’ decision containing the  list of protected areas is promulgated in the Official Gazette and access to justice is open to all, public and stakeholders through public consultations within the procedures for designation of the “relevant” protected areas shall be guaranteed by the provisions of Art. 3-5 of BRA). The CC confirms that access to justice is not restricted with regard to the name and location of the protected area, the subject matter and purpose of the protected area, and its size and boundaries. Moreover, the orders under Art. 12, Para. 6 of BDA only include prohibitions or restrictions on activities which are known in advance and are likely to cause significant damage to the conservation object in the area concerned, and owners are given the opportunity to participate in the procedure for determining the protection regime, as well as to appeal at a very early stage against the Council of Ministers’ decision, for approving the list at the national level.

On the basis all of the above considerations, the Constitutional Court found that the contested provision of Art. 12, Para. 7 of BDA does not result in a constitutionally impermissible interference of the state with the private property rights of individuals and does not constitute a disproportionate restriction on their access to justice in relation to the legitimate aim pursued.

[1] Directive 92/43/EEC (OJ L 206, 22.7.1992) andDirective 2009/147/EC (codification of Directive 79/409/EC, OJ L 20,26.01.2010) which are transposed into the Biological Diversity Act.

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