The Supreme Administrative Court, a five-member panel, rendered a final decision No. 3933/11.04.2023 in Administrative Case. No. 7238/2022 regarding the case with the appeal of texts from the Ordinance on the use of surface waters, providing for the provision of a document for an established right to build in the riverbed in the proceedings for issuing, amending and/or extending the validity of the Water Abstraction Permits.
The five-member panel of the Supreme Administrative Court found that the decision of the first instance was lawful, and when rendering it, the factual situation was correctly and thoroughly examined, analyzed with the collected statements relevant to the subject of the dispute, in which it was correctly accepted that the intended grounds for annulment of Art. 22, para. 3, item 4 and art. 43, items 6 and 9 of the Ordinance on the use of surface waters were present.
It should be taken into account that after a comparative analysis between the Act on Waters and the appealed provisions, a three-member panel of the Supreme Court, acting as the first instance, ruled that Art. 22, para. 3, item 4 and art. 43, items 6 and 9 of the Ordinance were adopted in contradiction with a normative act of a higher level, namely the Act on Waters.
Two of the appealed provisions - art. 22, para. 3, item 4 and art. 43, item 9 of the Ordinance, providing for a document for an established right to build in the riverbed in the procedure for issuing a permit for water abstraction (art. 22, paragraph 3, item 4) and for amending and/or extending the permit for HPP (Art. 43, Item 9). The Act on Waters does not contain such in the hypothesis of issuing a permit, nor in the hypotheses of amendment and/or extension of the permit. The Court finds that the requirement introduced by the Ordinance to submit a document certifying a valid established right to build at the time of submitting the application for the issuance of the permit not only contradicts the Act on Waters, but also represents an unreasonable administrative and financial burden for the applicant.
The other contested provision - art. 43, item 6 of the Ordinance, providing for a certificate for entering into operation, when the application is for the extension of a permit under Art. 42 of the regulation and when the realization of the goal requires the construction of systems and facilities. The provisions for the continuation of the permit are regulated in the fourth chapter, section III of the Act on Waters and do not contain such a requirement. The court found that the additional requirement is not only a contradiction of the Act on Waters, but would be objectively unenforceable in certain cases.
Taking into consideration the aforementioned conclusions, the three-member panel of the Supreme Administrative Court revoked with its decision No. 6732/06.07.2022 in administrative case No. 7224/2021 the provisions of Art. 22, para. 3, item 4 and art. 43, items 6 and 9 of the Ordinance on the use of surface waters. A cassation appeal filed by the Council of Ministers of the Republic of Bulgaria against the court act of first instance came to a ruling by a five-member panel. With final decision No. 3933/11.04.2023, in administrative case No. 7238/2022, issued by a five-member panel of the Supreme Administrative Court, the provisions are revoked and do not apply in the future.
