Arteks: The Bulgarian institutions must enforce the law
Bulgarian institutions must enforce the law. A petition with this request was sent to President Rumen Radev, to the Commissioner for Justice of the European Commission - Didier Reynders, to the Prime Minister Stefan Yanev, to the Minister of Regional Development and Public Works arch. Violeta Komitova, and to the director of DNSK arch. Vladi Kalinov, by the Artex construction company.
We are hereby addressing you and asking you, as officials of the competent institutions, to observe the law, to honour the rulings of the Bulgarian court, to demonstrate a responsible and fair approach to Bulgarian business and not to allow the issuing of yet another unlawful regulation that will stop the construction of the GOLDEN AGE building.
We learned from a statement by Arch. Ivan Shishkov, who is a consultant with the interim Minister of Regional Development and Public Works, that – as a result of significant political pressure, without taking into consideration the legal arguments and in blatant disregard for the case determinations by two court panels of the Administrative Court of the city of Sofia – the Directorate for National Construction Control (DNCC) is initiating a procedure to stop the construction works, this time due to an expired construction permit, making it look like the experts at DNCC are not aware of the actual validity period of the permit.
The same way as it happened two years ago when the DNCC unlawfully stopped the construction for the first time, now yet again ARTEX is being victimized by political struggles and institutional rivalries in this so-called new time. The overall case history illustrates how a purely Bulgarian investor, an established construction company with 27 years of experience which employs close to 1,000 people is being mistreated, mislead, humiliated and financially ruined by the actions of bodies and institutions that are otherwise meant to guarantee the lawfulness of construction activities in the country. This is hardly a good attestation for the stability of the investment climate in the country – the foreign investors already gave up on working in Bulgaria. It seems it is now the turn of Bulgarian investors to reorient.
It became clear to us that all arguments that were presented in detail by respected legal experts and the most prominent figures from the academic circles, case law examples, and even the reasoning of the court on this specific case, are irrelevant for the ministry.
The full revocation of the DNCC’s order of 2019 by the Supreme Administrative Court clearly shows that there is no issue whatsoever with the construction permit and it was valid both at the time of issuing of the order and at the date of the final court ruling. The latest statements by representatives of the Ministry of Regional Development and Public Works (MRDPW), however, create an unacceptable impression that is meant to influence the final conclusions of the DNCC and force the Director of the DNCC to issue yet another unlawful ruling for discontinuation of the construction works.
Perhaps it is currently easier not to pronounce a legally justified ruling on the case due to societal expectations to the interim government, even though the determination about the validity of the construction documents is entirely in the purview of the DNCC. Maybe it is more convenient to issue another doomed administrative ruling that will be appealed, and thus once again the responsibility for resolution of the dispute will be passed on to the court.
We firmly support our view, that was confirmed by the case in their motives for two court rulings, that the construction permit for the GOLDEN AGE building is valid at least until 19 November 202. This is the date that marks 10 years from the issuing of Order No РД-09-50-1027 of 19 November 2012 by the Chief Architect of the Sofia Municipality for revalidation of the construction permit.
This is not a case of retroactive implementation of a new law as is being insinuated by opponents of the project. The administrative ruling quoted above that revalidates the construction permit was valid on the date of entry into effect of the amendment to the law. The final legal consequences of the ruling had not yet occurred, i.e. the legal relationship under the ruling was existing at the time of the new stipulations of the law. In accordance with legal doctrine and case law, the new substantive regulation applies to existing legal relationships and re-stipulates their conditions for the future. As it relates to the current legal case, this means that the construction completion deadline set forth in the revalidation ruling of 2012 is automatically extended from 5 to 10 years, i.e. until 19 November 2022.
There is another extremely important issue that has to be considered here. The construction was stopped with an unlawful ruling by the DNCC on 15 April 2019. The preliminary enforcement of the ruling by the DNCC that was permitted by the institutions deprived us of the opportunity to finish the construction works that we are obligated to complete under deadlines strictly defined by the law. In that case, it was also legally impossible for the court to stop the preliminary enforcement of the appealed ruling.
Having in mind that the court revoked the ruling of the DNCC for being unlawful, the construction completion deadline is to be extended by the duration for which the construction works were unlawfully stopped.
Although the Spatial Development Act does not specifically stipulate the consequences for the validity of a construction permit when the construction works under it are stopped by an unlawful administrative ruling, the mandatory case law should be applied by analogy and it involves an extension of the construction permit when the title holder has been effectively prevented from exercising their right.
There is a similarity between the scenario for which case law exists and the other one – the construction permit and the surface right allow their holder to do the required actions under the Spatial Development Act (SDA) in connection with the intent to build, and that involves a legal assumption that all natural persons, legal entities, and administrative bodies will not perpetrate any unlawful or unfair acts. As stated by Interpretative Ruling No 1 of 4 May 2012 under interpretative case No 1/2011, the General Assembly of the Civil and the Commercial Board of the Supreme Court of Cassation (SCC): “The case law of the SCC supports the opinion that the five-year period during which the construction right is to be exercised is subject to the statute of limitations in order to not be extinguished in favor of the owner of the land.”
It can be assumed by analogy that the completion period for the construction permit is also subject to the statute of limitations and shall be suspended during the court proceedings for the dispute of the procedural order. This conclusion arises not only from the nature of the deadline but also the general legal principle that no one can benefit with rights arising out of their own bad-faith acts, therefore, per argumentum e contrario, no one’s legal interests may be harmed by the unlawful acts of others, even more so by acts of state administrative bodies.
Even if we disregard the conclusion of the statement issued by the Ministry of Regional Development and Public works and signed by Deputy Minister Yovev according to which the permit is valid until January 2020 that marks a period of 10 years after the opening of the construction site, it still stands that the construction was stopped unlawfully 9 months before the expiry of the permit validity period. Therefore, even with this interpretation, the investor should have at least 9 months after the final ruling of the Supreme Administrative Court in order to complete the rough construction stage of the building.
We wish to complete our project in compliance with the effective legislation; we stay away from politics and do not wish to be turned hostage by certain political interests and power struggles between institutions.
The issuing of yet another unlawful ruling will eventually lead to filing of the respective statement of claim against the state under the procedure of the State and Municipal Responsibility for Damages Act. As a consequence of the already revoked stoppage, we have suffered enormous damages from stay of construction equipment and workers, price differences of construction materials (they have increased substantially since April 2019), lost profits from failed or terminated preliminary contracts under the project, increased financing costs, etc. The additional increase of these damages by new unlawful acts will not remain without consequence, and we will seek the protection of our rights and lawful interests by all available legal means, including – if necessary – after exhausting the internal legal remedies available, before supranational institutions like the European Court of Human Rights in Strasbourg.
Regrettably, the damages will be compensated by the Bulgarian taxpayers. However, let us realize who bears the real personal, political, and moral responsibility for an obviously unlawful ruling for yet another stoppage of the construction works: the Minister of Regional Development of the Republic of Bulgaria and the Director of the DNCC.
We assure you we are prepared to take all lawful actions to protect our legal rights and interests, including effective protest before the responsible institutions.
city of Sofia, 18 June 2021
YOURS SINCERELY,
The team of ARTEX GOLDEN AGE OOD and everyone who supports the petition. /BGNES