The constitutional judge is a rapporteur at the request of the “Denkov“ cabinet. against a SC decision “took away“ dividend from the profit of “I WAS” EAD
The decision of the National Assembly to prohibit the Minister of Energy from distributing a BGN 425 million dividend from the Bulgarian Energy Holding (BEH) went to the Constitutional Court (CS). It is contested by the Council of Ministers.
And the case regarding the constitutionality of the ban, adopted on the proposal of five deputies from GERB, is on the report of Desislava Atanasova, informs Lex.bg.
The decision of the parliament challenged by the government reads: “Tasks the Minister of Energy, in his capacity as the exerciser of the rights of the sole owner of the capital of “Bulgarian Energy Holding” EAD (“BEH“ EAD), respectively of “BEH“ EAD, not to distribute a dividend from the profit of “BEH“ EAD according to the annual financial report for the financial year 2023 in the amount of BGN 425 million, representing the difference between BGN 1.225 million (profit according to the annual financial report for 2023, after taxation) and the dividend paid by “BEH” EAD under item 5b and item 6a of Order No. 2 of the Council of Ministers of 2023, amended and supplemented by Order No. 3, 4, 5 and 7 of the Council of Ministers of 2023.“.
It was proposed by the people's representatives from GERB Temenuzka Petkova, Zhecho Stankov, Alexander Nenkov, Rositsa Kirova and Maria Belova. And it was adopted on March 29, 2024 with the votes of all present deputies from GERB (60 people), DPS (31), “Revival“ (32) and ITN (9). Only the PP-DB were against, and the BSP abstained.
Proponents and supporters of the ban point out that in recent years in the budget
have been “withdrawn“ over BGN 5.4 billion from the profits of BEH, Kozloduy NPP and NEC.
According to them, if the state now “takes“ BGN 425 million from BEH, this “will have an extremely negative impact on the financial security of the sector and will put its normal functioning at risk, will make it impossible to carry out investments and modernization in the sector, as well as the implementation of new infrastructure projects”.
Shortly before that, the parliament made another decision, with which it tasked the Minister of Finance Asen Vassilev to cover the operating deficit of BGN 1 billion in the “Electricity System Security” fund. until March 31, 2024 (for this decision, which was also challenged in the SC, see here). In an attempt to fulfill it, the Council of Ministers decided to take BGN 425 million from BEH to be paid into the "Security of the Electricity System" fund, but as it turns out, the Parliament forbade it to do so.
In their request to the Constitutional Court, the Council of Ministers stated that this decision of the National Assembly contradicts the principles of the rule of law, the separation of powers, the inviolability of private property, the equality of private property subjects in the conditions of a market economy and of the authority of the government to direct the implementation of the state budget.
MC points out that the implementation of the decision would violate the budget indicators adopted by the National Assembly. And it emphasizes that the parliament “can exercise political control and vote of no confidence in the Council of Ministers, but not prevent the full exercise by the government of its constitutional powers in the administration of the state or of the statutory powers of another body of the executive power“ .
The government also states that according to the Law on Public Enterprises
The Council of Ministers, not the parliament, exercises the rights of the state in public enterprises and approves the general dividend policy.
„The obligation of abstention from action assigned by the National Assembly to the Minister of Energy (not to distribute the dividend determined by the Council of Ministers) would not only lead to a violation of basic budget parameters defined by the annual law on the state budget, in an unacceptable manner constitutional point of view way, but it is also in deviation of the rules of the Law on Public Finances. After the norm of Art. 19 of this law stipulates that provisions of normative acts, which provide for a reduction of revenues after the annual state budget law has been adopted, should not enter into force before its amendment, this imperative rule could not be considered constitutionally permissible to be derogated from by a decision of the National Assembly”, writes MS.
And adds that the income from the state dividend is calculated at 100 percent deductions from state companies and enterprises for 2024 (with the exception of hospitals, mental health centers and budgetary organizations and companies from the water supply sector), and the non-allocation of a dividend from the profit of “BEH“ The EAD for 2023 will be reflected in a decrease in non-tax revenues, will lead to a deterioration of the budget balance and a deviation from the set fiscal goals.