Generic selectors
Exact matches only
Search in title
Search in content
Search in posts
Search in pages

Opinion of the UPEE on constitutional case № 13/2021 on fees for seizure of sediments from the Danube river

In connection with an invitation from the Constitutional Court of the Republic of Bulgaria to submit an opinion on constitutional case № 13 on the 2021 inventory, the Union for Private Economic Enterprise expresses the following position:

Art. 19, para. 1 of the CRB stipulates that the economy of the Republic of Bulgaria is based on free economic initiative, and para. 2 requires the law to create and guarantee to all citizens and legal entities equal legal conditions for economic activity, preventing the abuse of monopoly, unfair competition and protecting the consumer.

The regulation of fees according to art. 194 of the Water Act actually forms part of the economic regulation of water management activities and as such it should be in accordance with the constitutional framework, including the requirements of Art. 19, para. 2 of the CRB. In view of this, when carrying out the legal regulation of the fees collected under the Law, the provisions of Art. 19, para. 2 of the CRB requires the law to create and guarantee to all citizens and legal entities equal legal conditions for economic activity, preventing the abuse of monopoly, unfair competition and protecting the consumer.

In order to properly understand the problem, it is necessary to pay attention to the legal characteristics of fees and the specifics of fees in the field of water use. As the Constitutional Court has repeatedly had the opportunity to rule, fees represent payments in favor of the tax office of natural or legal persons for an action or service performed by a state or municipal body (eg Decision № 11 of 01.07.2003 under Art. d. № 9/2003). This principle of regulation of fees is also established in Art. 2 of the State Fees Act, namely the state fees to be determined on the basis of the necessary material, technical and administrative costs for the provision of the service.

Taking into account the specifics of the water services, no arguments are drawn in support of the charging not on the basis of the actually consumed, but on the basis of the previously allowed one. Directive 200/60 / EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy sets as a principle for charging the reimbursement of water services, including environmental costs and resource costs, in line with the general principle “The polluter pays”. In this sense, the Directive itself does not create preconditions for different treatment of different types of water use, which would require a different approach to charging. Moreover, sediments are a renewable resource.

In view of this, the provisions of Art. 194, para. 4, item 1 of the TA fees represent non-refundable payments by the economic entities for received water services (seized quantities of alluvial deposits from the Danube River and reservoirs), the amount of which should be determined on the basis of the basic principle of economic regulation of the use of water, namely the principle of recovery of resource costs and environmental costs. This is one of the main arguments for determining the fee for seizure of sediments from the Danube River and reservoirs on the basis of the actual volume of seizure, and not on the permitted volume of seizure, as provided in Art. 194, para. 4, item 1 of the Law.

At the same time, another charging regime, regulated in the same normative act – Art. 194, para. 2 of the Water Act, stipulates a different approach for charging with regard to water abstraction from surface and groundwater – based on the withdrawn volume of water

This violates the principle of equal treatment of legal entities in the conduct of business and for the protection of fair competition by placing commercial companies that use water bodies for the removal of sediments from the Danube River at a disadvantage from other economic entities that carry out water abstraction of surface or groundwater, as well as by those who extract aggregates from the interior of the country or are concessionaires.

The analysis of the provisions and of the legal nature of the fees for water use shows that there are no grounds for different treatment of the approach for charging under Art. 194, para. 4, item 1 of the Law and Art. 194, para. 2 of the Law.

In connection with the above, the Union for Private Economic Enterprise fully shares the reasons set out by the Supreme Administrative Court for the existence of unconstitutionality of Art. 194, para. 4, item 1 of the Water Act.