20 January 2023
On 18 January 2023, the Ombudsman institution received a response letter from the Supreme Administrative Prosecutor’s Office (SAPO) informing Prof. Diana Kovacheva that, following her signal, non-compliant texts were found in ordinances of 119 municipalities in the period from 30 March 2022 until 17 January 2023. The sublegislative documents are contrary to laws such as the Local Taxes and Fees Act (LTFA), the Statutory Instruments Act (SIA), the Spatial Planning Act (SPA) and others.
We recall that, following a report filed by the Ombudsman last year, the SAPO instituted a case-file at the Legality Supervision Department and took “immediate action” for the cancelation of unlawful texts in several municipal ordinances setting and administrating local fees and prices as regards the Household Waste Fee section.
At that time, Ombudsman Diana Kovacheva referred the matter to the Prosecutor’s Office after her own check of the municipal ordinances in Vidin, Nesebar, Dolna Mitropolia in relation to statements for the exemption from household waste fee when a property was not in use which were filed by 31 October while the term at Stamboliiski Municipality was until 30 November of the previous year. Pursuant to the law, however, such statements are filed by the end of the year.
The reason for the check of the Ombudsman and the referral to the SAPO was the complaints from affected owners of properties in Vidin Municipality who turned to the Ombudsman because of the refusal for their statements to be accepted after 31 October 2021 based on the argument that there were amendments to the regulatory framework. At the same time, the amendments do not correspond to the effective law.
In her signal to the Prosecutor’s Office, the Ombudsman noted that the ordinances of Pazardzhik, Stamboliiski and Bobov Dol also included additional terms for exemption from waste collection and waste removal fee. At that time, the Ombudsman emphasised expressly in her opinion that the legislator had provided clear and accurate arguments for the cases in which the fee was not due and any additional terms, including a requirement for submission of certificates from public service suppliers, were not based on the law.
In its letter this week, the SAPO informs Prof. Kovacheva that, as of 29 October 2022, the Prosecutor’s Office found 95 municipal ordinances which are contrary to the Local Taxes and Fees Act, the Statutory Instruments Act and others.
“Provisions of municipal ordinances have been found which, in relation to the submission of statements for exemption from household waste collection and removal fee due to a property not being in use, introduce a shorter term than the one provided for in the provision of Article 71 of the Local Taxes and Fees Act currently in effect,” the SAPO notes.
The letter of the Prosecutor’s Office also shows that certain municipal councils have introduced an additional term for exemption of the waste collection and waste removal fee and this option is only available for properties which have not been declared as one’s main residence while there is no such requirement in the LTFA.
It also provides information that they have found breaches under the SPA as well – in the event of excavation works along streets and pavements and in internal estate spaces, special permits were required in addition to construction permits and separate fees were collected for them.
“Such decisions of the municipal councils are not based on the LTFA or the SPA. The powers of municipal councils as regards local fees and service prices are based on the LTFA, respectively other special laws, and it is inadmissible for them to be exercised to impose a new burden,” the Prosecutor’s Office is definitive.
The SAPO adds that the inspections also found municipal ordinances providing for elements of administrative violations entailing sanctions other than those laid down at the legislative level in the LTFA.
The Prosecutor’s Office notes that its inspections continued and, as of 17 January 2023, they covered all ordinances of municipal councils in the country. It was found that 119 ordinances were contrary to provisions of higher-level statutory instruments. A total of 44 protests were submitted to the respective administrative courts and, as of now, 12 have been upheld at the first instance, the SAPO notes and applies a list of the municipalities where non-compliant provisions have been found.