27 October 2023
Ombudsman Diana Kovacheva sent an opinion to three ministries – the Ministry of Energy, the Ministry of Regional Development and Public Works and the Ministry of Labour and Social Policy – recalling that their joint draft Ordinance on the criteria, conditions and procedure for determining the status of households in energy poverty and the status of vulnerable customers for the supply of electricity, which has an opening date of 25 October 2023 and a closing date of 8 November 2023, has been published on the public consultation portal.
Prof. Kovacheva draws attention to the fact that the three ministries are in conflict with the Normative Acts Act, because as of 26 October 2023, neither the website for public consultations, nor the ministries’ websites have published motives on the draft in question. In addition, the Ombudsman insists that line ministers take action to extend the deadline for its public consultation.
“Before submitting a draft normative act for publication or adoption by the competent authority, the drafter shall publish it on the website of the institution concerned, together with the grounds, the report and the preliminary impact assessment referred to in Article 20. When the drafter is an executive authority, the publication takes place on the Public Consultation Portal, and when the drafter is a local authority, the publication takes place on the website of the municipality and/or municipal council concerned”, the Ombudsman cites Article 26, paragraph 3 of the Normative Acts Act.
Prof. Kovacheva adds that, under Article 26, paragraph 4 of that Act, “the time limit for proposals and opinions on the drafts published for public consultation under paragraph 3 shall not be less than 30 days.” In exceptional cases and with explicit reasons given in the motives or in the report, the author of the draft may specify another time limit, which shall not be less than 14 days.“
Last but not least, the public defender points out that “a draft normative act to which no motives are attached, shall not be discussed by the competent authority” – Article 28, paragraph 4.
According to the Ombudsman, the cited provisions of the Normative Acts Act ensure compliance with the underlying principles of drafting and adopting normative acts, and non-compliance with the imperative requirement to publish motives does not warrant the participation of the interested parties in the public discussion of the draft, causing the procedure to be vitiated by a defect.
“It is also puzzling that the draft refers to provisions of the Energy Act that did not exist at the time of its publication for public consultation, i.e. 25 October 2023 (for example, in Article 7, paragraph 3 of the draft, it is envisaged that the Energy and Water Regulatory Commission shall assist the authorities under Article 38e, paragraphs 3 and 5 of the Energy Act; Article 13 of the draft reads: “Authorities under Article 38e, paragraphs 3 and 5 of the Energy Act”; in Annex No. 2 to Article7, paragraph 2 of the draft, item 1.1, b „…in connection with Article 21, paragraph 1, item 8c of the Energy Act...”, concludes Diana Kovacheva and insists that the ministries take immediate action to eliminate the inconsistencies.