Dr
Radosveta Vassileva,
Adjunct Senior Research Fellow, UCD Sutherland School of Law
On
12 February 2026, the CJEU delivered its judgment in Case C-56/25 which concerns a
preliminary reference from Bulgaria raising a question about the application of
the principle of primacy of EU law in view of a provision of the Procedural
Rules of Bulgaria’s Constitutional Court. The CJEU judgment was rendered
without an Opinion by the Advocate General, indicating that, in the eyes of the
CJEU, the question was neither new, nor difficult. Moreover, the CJEU quotes its
settled case law on the primacy of EU law.
However,
a closer look at the Bulgarian legislation, which gave rise to the question by
the Bulgarian court, especially against the broader country-specific context, reveals
that the judgment seems to foreshadow inevitable conflicts between the
Bulgarian and the EU legal orders in the future. From a Bulgarian perspective, the
place of EU law in the hierarchy of norms is far from being conclusively determined.
In parallel, the judgment demonstrates some of the flaws of a controversial constitutional reform carried out in Bulgaria in 2023,
whose grand innovation was the ‘individual constitutional complaint’, which led
to the hierarchy of norms dilemma of the referring court.
‘The
chicken-or-the egg’ problem of the Bulgarian court
The
preliminary reference was made in 2025 by the Sofia City
Court, acting as a first instance in criminal proceedings, which seemingly faced
a ‘chicken-or-egg’ dilemma.
The
Sofia City Court was concerned that a provision of national law relevant to the
qualification of the criminal offence and, respectively, the punishment in the
criminal proceedings before it violated both Bulgaria’s Constitution and
EU law – namely, Article 4 of Council Framework Decision 2004/757/JHA of 25
October 2004 laying down minimum provisions on the constituent elements of
criminal acts and penalties in the field of illicit drug trafficking.
The
Sofia City Court deemed that it was more appropriate to ask the Constitutional
Court to rule on the constitutionality of the contested provision of national
criminal law before it made a preliminary reference to the CJEU about the
compatibility of Bulgarian criminal law with the aforementioned council
framework decision. However, in its eyes, there was a catch – Article 18(3)
of the Procedural Rules of Bulgaria’s
Constitutional Court
requires that a request to it
…must
contain a reasoned assessment of the applicable law, including of the
consequences of the application of EU law where the contested provision or act
comes within its scope.
In
this context, the Sofia City Court asked the CJEU the following:
Are
Article 267 TFEU, Article 94(b) of the Rules of Procedure of the
Court … and the principle of the primacy of EU law … to be interpreted as
meaning that, where a national court has doubts as to the compatibility of a
provision of national law with EU law, and is at the same time convinced that
that provision of law is [contrary to the national Constitution], it is obliged
or entitled, before submitting its request for a preliminary ruling, to
establish whether that provision of national law is indeed applicable in the
main proceedings by making an application to the… Constitutional Court… for a
declaration as to its unconstitutionality?(para 27 of judgment).
Contextual
background: ‘the individual constitutional complaint’ as the grand innovation
of the 2023 constitutional reform
The
significance of the question by the Sofia City Court can be better appreciated
against the broader context of the Bulgarian constitutional reform of 2023,
which, regrettably, is neither explained in the text of the preliminary reference itself, nor in the CJEU judgment. This
reform, however, made Article 18(3) of the Procedural Rules of Bulgaria’s
Constitutional Court, which is at the heart of the hierarchy of norms dilemma
of the Sofia City Court, a legal irritant from an EU law perspective.
Before
the 2023 reform, the opportunities to request a review by the Constitutional
Court were ‘significantly limited and depend[ed] on the political climate in
the country’ (see Radosveta Vassileva, ‘A Perfect
Storm: The Extraordinary Constitutional Attack against the Istanbul Convention
in Bulgaria’ (2022) 1 Osteuropa Recht 84). According to the previous
wording of Article 150(1) of the Bulgarian Constitution, the Constitutional
Court could only be approached by one-fifth of the Members of Parliament, the
President, the Council of Ministers, the Supreme Court of Cassation, the
Supreme Administrative Court, or the General Prosecutor. In some limited cases,
it could be approached by the Ombudsman or the Supreme Bar Council (see the
previous wording of Articles 150(3) and 150(4) of the Constitution).
To
this end, one of the grand ‘innovations’ of the 2023 constitutional reform was
the introduction of the ‘individual constitutional complaint’. The name given
by the Bulgarian legislator to this new procedure, nevertheless, seems to be a
misnomer because a private citizen can neither directly ask the Constitutional
Court for constitutional review nor appeal court decisions there on
constitutional grounds. The new mechanism for constitutional review, in
essence, mimics the preliminary reference procedure before the CJEU. In fact, as
argued in the explanatory memorandum accompanying the reform bill of 2023, ‘the
situation in Bulgaria [was] paradoxical because any court (judge) could [make a
preliminary reference to the CJEU], but could not turn directly to the national
constitutional jurisdiction’ (p 17 of the aforementioned explanatory memorandum).
Following
the 2023 reform, Article 150(2) of the Constitution stipulates:
Any
court, at the request of a party to the case or on its own initiative, may
refer to the Constitutional Court a request to establish an incompatibility
between a law applicable to the specific case and the Constitution. The
proceedings in the case shall continue, and the court, whose decision is final,
hands down its judgment after the proceedings pending before the Constitutional
Court have been concluded.
It
is important to note that the usage of ‘may’ in the wording implies that the
judge or the judicial panel in question has discretion over whether to
honour such request by a party in the proceedings. In practice, it is common
for courts to choose not to honour requests for preliminary references to the
CJEU and/or requests to approach the Constitutional Court under the new wording
of Article 150(2) coming from the parties. In other words, there are cases in
which judges turn a blind eye to the likely incompatibility between Bulgarian
legislation, on the one hand, and EU law and the Constitution, on the other.
There are also cases in which judges can be seen in a more activist role,
making references when the parties concerned did not argue any such
incompatibility themselves.
The
‘ticking procedural time bomb’ left by the Bulgarian legislator
Bulgaria’s
Constitution, adopted in 1991, clearly specifies the hierarchy of norms. Its Article
5(1) explicitly states that it is the ‘supreme law’, while its Article 5(3)
stipulates:
International
treaties, ratified in accordance with the constitutional procedure,
promulgated, and having entered into force for the Republic of Bulgaria, are
part of the country’s domestic law. They take precedence over those provisions
of domestic legislation that contradict them.
Hence,
the Constitution takes precedence over any international treaty and Bulgarian law
while international treaties take precedence over Bulgarian laws that
contradict them. Bulgaria has, of course, ratified
its EU Accession Treaty of 2005.
Furthermore,
the status and place of CJEU case law in the hierarchy of norms is subject to
debate from a national perspective. CJEU’s case law is not defined as binding
in Bulgarian legislation, unlike the case law of the Constitutional Court or
the decrees and decisions on interpretation by the country’s supreme courts.
However, the Code of Civil Procedure allows cassation on the grounds of
violation of the case law of the CJEU (see
Article 280(1), point 2).
It
is notable that throughout the years, Bulgaria’s Constitutional Court has tried
to avoid direct confrontation with the CJEU. In its own case law, however, it has argued that it is up to each
entity requesting constitutional review to determine the applicable law,
including EU law, to the proceedings before it. It has also stressed that the
determination of the applicable law should always precede requests for
constitutional review (see, for instance, the detailed reasoning in Ruling
2 of 24 February 2022 by the Constitutional Court).
In
this light, the ‘individual constitutional complaint’ can be seen as a ‘ticking
procedural time bomb’ since the reform of 2023 left Article 5 of the
Constitution untouched, while expanding the jurisdiction of the Constitutional
Court itself, which can now receive requests directly from judges. In practice,
this ‘individual complaint’ means a chance for more frequent encounters and,
respectively, potential clashes between Bulgarian constitutional law and EU law
in ordinary Bulgarian courts.
The
legislative choice not to tamper with Article 5, in turn, was informed by the
restrictions on amendments imposed by the Constitution itself – any amendments
to Article 5 require the convocation of a ‘grand national assembly’ as opposed
to a ‘regular national assembly’ (on the difference between them, see here; see
also Article 158
of the Constitution).
Grand national assemblies are notoriously difficult to convene. The
Constitution of 1991 was adopted by such an assembly.
CJEU’s
judgment as an exercise in judicial diplomacy
In
the judgment in Case C-56/25, the CJEU held that Article 267 TFEU, the
principle of the primacy of EU law and Article 94(b) of the Rules of Procedure
of the Court of Justice do not preclude procedural rules, such as Article 18(3) of the Procedural Rules of Bulgaria’s
Constitutional Court (para 61 of judgment). Leading authorities on the
rule of law like Professor Laurent Pech have already called the judgment ‘unusually generous’,
especially in view of challenges to CJEU’s jurisdiction from other EU member
states, such as Poland.
Yet,
when one reads the reasoning of the judgment in light of the particularities of
the Bulgarian constitutional order, it seems that the ‘generosity’ came with a
few price tags – namely, demands for a voluntary surrender of jurisdiction by
the Bulgarian Constitutional Court. These requests, nevertheless, may not bear
the fruit intended by the CJEU, precisely because they seem oblivious of
context, including national legislation.
One
of the reasons why the CJEU was not troubled by the requirements of Article
18(3) of the Procedural Rules of Bulgaria’s Constitutional Court was the Constitutional
Court’s alleged obligation to make preliminary references itself. Namely, the
CJEU stated: ‘…if a constitutional court is seised of a request for a review of
the constitutionality of a provision of national law coming within the scope of
EU law, that court is in principle obliged to make a reference to the Court of
Justice for a preliminary ruling, in accordance with the third paragraph of
Article 267 TFEU…’ (para 57 of judgment). Bulgaria’s Constitutional
Court, however, has no record of making preliminary references to the CJEU and
it is highly unlikely that it will endeavour to make such references in the
future if an amendment to Article 5 of the Constitution is not made. That is
because the Constitutional Court sees its own role solely as the
guardian of the Bulgarian Constitution. First, the Constitutional Court has the
monopoly on authoritative, binding interpretation of the Constitution (Article
149(1), point 1 of the Constitution). Second, in case of conflict between the
Constitution and EU law, the Constitution prevails according to its own text.
Third, as highlighted above, the Constitutional Court has stated in its own
settled case law that the establishment of the applicable EU law is in the
prerogative of the court examining the dispute on the merits. On the one hand,
this approach protects the Constitutional Court’s jurisdiction. On the other
hand, it prevents direct confrontation with the CJEU – it is up to the ordinary
courts to identify and raise any questions about the compatibility between EU
law and constitutional law and to consider how such conflict affects the
outcome of the case.
It
is also interesting that the CJEU reminds that a ‘national court is required,
in order to ensure the full effectiveness of the rules of EU law, to disregard,
in the dispute before it, the rulings of a national constitutional court which
refuses to give effect to a judgment given by way of a preliminary ruling by
the Court of Justice…’ (para 59 of judgment). From an EU perspective,
this approach has numerous merits, such as empowering judges in lower courts to
disregard controversial decisions by constitutional courts, especially when
they are unlawfully composed. Nevertheless, in the Bulgarian context, beyond
the invitation to disregard key express provisions of the Bulgarian
Constitution, this conclusion ignores important practical aspects. For
example, pursuant to
Article 280(1), point 2 of the Bulgarian Code of Civil
Procedure,
non-compliance with case law by the Constitutional Court serves as grounds for
cassation. While the Code of Criminal Procedure
does not contain such explicit reference to constitutional case law, its
Article 348 allows cassation for ‘violations of the law’ broadly conceived.
A
thorny path ahead for the primacy of EU law
Overall,
the path ahead for the primacy of EU law in Bulgaria appears rather thorny. CJEU’s
judgment in Case C-56/25 may be seen as a precursor to a series of legal and
political challenges. It foreshadows inevitable clashes between EU law and
Bulgarian constitutional law in ordinary courts, which are facilitated by the
shortcomings of the 2023 constitutional reform.
It
is also doubtful to what extent the approach, which the CJEU endorses in the
judgment, will contribute to affirming the primacy of EU law in Bulgaria. Ensuring
such primacy on paper requires important constitutional amendments by a grand
national assembly as well as a large-scale legislative reform. It also
necessitates a change of mentalité in practice on behalf of both
Bulgarian judges and the CJEU itself.
First,
CJEU case law remains terra incognita for many jurists because of their educational
and professional background. Moreover, for more than a decade following Bulgaria’s
EU accession in 2007, preliminary references from the country came from a very
small circle of judges (see Aleksander
Kornezov, ‘Ten years of preliminary references – a critical review and
appraisal’(2017) Evropeiski praven pregled).
Second,
between 2018-2022, a vast number of preliminary references were made by
Bulgaria’s specialised criminal court, which had all features of an
extraordinary repressive tribunal, and used this EU law mechanism primarily as
a tool to affirm its legitimacy in light of criticism of its abusive practices.
In 2022, this court was dissolved for good for undermining the rule of law
upon the proposal by a short-lived opposition government and after years of
public discontent. As a result, doubts about the status of its case law and the
EU judgments resulting from its references, which are intertwined with it, are
on the rise. So is the bitter feeling that the CJEU empowered ‘non-judges’ the
way it did vis-à-vis Poland (see here).
Third,
the CJEU has acted as a Pontius Pilate, washing its hands of responsibility, on
key matters pertaining to Bulgaria’s rule of law backsliding and human rights
abuses. It has a record of prioritising formalism and refusing to address the
issues at their core, thus discouraging judges from raising politically
sensitive questions (on judicial independence, see here; on standards of proof in pretrial
detention, see here).
To
what use is then primacy for primacy’s sake? This is a question which many
judges from Bulgaria’s ordinary courts may ask in the aftermath of CJEU’s judgment
in Case C-56/25.
The author
would like to thank Prof Laurent Pech for his helpful comments and suggestions
on an earlier draft.
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