Skip to content

Beyond the Mandate: The ECJ’s Entry into Bulgaria’s Rule of Law Landscape

Avatar for Iliana Boycheva
Print |

Share

Bulgaria is an EU Member State facing long-standing rule of law concerns, including persistent deficiencies in judicial independence and an increasingly troubling pattern of fundamental rights violations. 1 Compared to other EU Member States with similar entrenched structural problems, like Poland, Hungary or Romania, Bulgaria has not featured prominently in the Commission’s rule of law enforcement actions, nor in the European Court of Justice (ECJ) case law on judicial independence. 2 While some shortcomings within the judicial branch in Bulgaria raised similarly relevant concerns, they did not succeed in triggering a comparable response within the ECJ’s rule of law framework 3 as a dynamic that underscores the growing role of the EU legal order as an indirect control mechanism when domestic ones are falling short.

A signal of an emerging shift came in April 2025, when the ECJ issued a ruling that directed attention toward Bulgaria, focusing on a widely acknowledged and long-standing institutional problem in Bulgaria: the continued operation of independent judicial bodies beyond the expiration of their legal terms of office. While this issue affects several bodies in Bulgaria, 4 its implications are particularly serious where it concerns those with direct influence over the judiciary. This is currently the case with the Inspectorate of the Supreme Judicial Council and the Supreme Judicial Council itself. 5 In Joined Cases C-313/23, C-316/23, C-332/23 6ECJ addressed several legal questions concerning judicial independence and the application of the General Data Protection Regulation in Bulgaria. This blogpost focuses solely on the first preliminary question, which concerns the continued operation of the Inspectorate to the Supreme Judicial Council beyond the expiry of its members’ constitutional mandates, and its compatibility with Article 19 of the Treaty on European Union (TEU) in conjunction with Article 47 of the Charter of Fundamental Rights of the EU (CFR). Specifically, can it be considered an infringement of Member States’ obligation to ensure effective remedies and independent judicial review if an authority with the power to impose disciplinary penalties on judges and collect data on their assets is allowed to extend its functions indefinitely after its constitutionally set term ends? If so, under what conditions is such an extension permissible? The Inspectorate of the Supreme Judicial Council is a constitutionally established body within the judiciary, whose members are elected by the Parliament. 7 It is formally tasked with safeguarding the integrity of the judiciary: it investigates allegations of undue influence, verifies asset declarations, examines potential conflicts of interest, and may recommend the initiation of disciplinary proceedings to the Supreme Judicial Council. 8 While its function positions it as a guardian of judicial independence, in practice, the body has itself been the subject of repeated criticism for its lack of transparency in its work, the risk of political influence over appointments, and its ambiguous institutional role. 9 Different documents have highlighted the absence of sufficient safeguards to guarantee the body’s impartiality, despite its significant powers over magistrates. Similar concerns are shared in the Opinion of the Advocate General PIKAMÄE. 10

As of July 2025, the mandates of all members of the Inspectorate have long expired – since 2020, yet the body continues to operate without renewal. This prolonged institutional deadlock reflects Bulgaria’s enduring political fragmentation and the absence of clear constitutional or legislative mechanisms governing the functioning of such bodies after the legal duration of their term of office has expired, particularly in cases where Parliament fails to achieve the required qualified majority for new appointments, which is the current case.

In this context, in 2022, faced with legal uncertainty surrounding the expired mandates of the Inspectorate, the Supreme Administrative Court referred two key questions to the Bulgarian Constitutional Court (CC) for interpretation. 11 Firstly, whether the powers of the Inspector General and Inspectors terminate automatically upon the expiration of their terms, or whether they may continue to perform their functions until the National Assembly makes new appointments. Secondly, whether the indefinite suspension of the Inspectorate’s activities, due to the parliament’s failure to elect successors, is constitutionally permissible.

Later that year, the Constitutional Court held that, upon the expiration of their mandates, the Inspector General and Inspectors must continue to exercise their functions until their successors are appointed. 12 The Court justified its position by balancing two principles: the constitutionally enshrined principle of fixed-term tenure, and an interpretively derived principle of institutional continuity. In its view, while the current situation is unconstitutional, continuity must temporarily prevail to avoid institutional paralysis and to preserve the rule of law. While the CC framed this compromise as necessary to avoid institutional paralysis, in practice and inadvertently normalised parliamentary inaction. 

The CC framed this solution as a socially necessary and justified compromise, arguing that the rule of law encompasses more than strict formalism. The decision seems like an implied additional tension between constitutional limits and governance, and most importantly, gave a green light for the parliamentary inaction, which is still evident because ever since then, no attempts to choose the Inspectorate’s members have ever been made. 

However, the decision did not examine the interlink between judicial independence and the expired terms of office of the judicial body. Its analysis remained confined to constitutional continuity, without considering whether the prolonged functioning of the body could compromise the independence of justice. This omission left a critical gap. A gap that eventually prompted national courts and legal actors to seek guidance through EU law, leading to the preliminary reference submitted to the ECJ in 2023.

The preliminary reference to the ECJ arose in the context of proceedings before the Sofia District Court, following the Inspectorate’s request for access to the banking information of several magistrates and their family members, in connection with the 2022 asset declaration cycle. Before granting the request, the referring court considered it necessary to determine whether the Inspectorate retained the legal authority to make such a request.

In this context, the Sofia District Court referred a preliminary question to the ECJ, seeking clarification as to whether the second subparagraph of Article 19(1) TEU, read in conjunction with the second paragraph of Article 47 of the Charter, should be interpreted as meaning that it is per se or under certain conditions an infringement of the obligation incumbent on Member States to provide effective remedies sufficient to ensure independent judicial review for the functions of an authority which can impose disciplinary penalties on judges and has powers to collect data relating to their assets and liabilities to be indefinitely extended after the constitutionally stipulated term of office of that body comes to an end? In other words, does the continued operation of a body beyond its expired term of office undermine the EU requirement for independent and effective judicial review?

The ECJ, not surprisingly, reformulated 13 the referring court’s question as whether, and under what conditions, the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter, precludes a Member State’s practice under which the members of a judicial body of that Member State – who are elected by its parliament for terms of office of a specific duration and are competent to scrutinise the activity of judges, public prosecutors and investigating magistrates in the performance of their functions, to carry out checks in respect of their integrity and the absence of conflicts of interest on their part, as well as to propose to another judicial body the initiation of disciplinary proceedings with a view to the imposition of disciplinary penalties on those persons – continue to perform their functions beyond the legal duration of their terms of office as laid down in the Constitution of that Member State, until that parliament elects new members. Or in other words, does EU law allow members of a judicial body to keep exercising oversight and disciplinary powers after their term has expired, solely due to the legislature’s failure to appoint new members? 

It is worth recalling why EU law plays a decisive role in such situations, even though the organisation of the judiciary falls primarily within the competence of the Member States. This national competence must still be exercised in conformity with EU law. In particular, Member States are required to ensure that any body qualifying as a “court or tribunal” under EU law – and thus responsible for interpreting and applying EU law – complies with the standards of effective judicial protection, including the requirement of judicial independence.

This principle is rooted in Article 19(1) TEU, which requires Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. As the Court has previously stated, the very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law. Since national courts are also courts of EU law, any deficiencies in their independence or the independence of bodies that influence their operation can trigger review under Article 19 TEU because, regardless of anything else, it might lead to a situation where EU law is applied by a court that is not independent. The core of the ECJ’s reasoning addresses the implications of allowing judicial oversight bodies to continue functioning beyond their constitutionally defined terms of office. The ECJ reiterated that judicial independence requires the existence of legal safeguards capable of dispelling any reasonable doubt, in the minds of litigants and the public, regarding the body’s impartiality and insusceptibility to external influence. 14

The Court then analyses the disciplinary regime of magistrates – a matter directly relevant to the Inspectorate’s role. It reaffirmed that EU law requires procedural guarantees against political or institutional pressure in disciplinary matters. Such guarantees include the right to judicial review, as well as the requirement that investigative bodies act objectively and independently. These guarantees must be embedded in clear, legally binding rules under domestic law.

While Member States may choose to extend the functioning of such bodies temporarily in exceptional circumstances, the ECJ underlined that any such extension must be based on an explicit legal framework, with precise and foreseeable rules ensuring the independence and impartiality of the individuals concerned. In Bulgaria’s case, the Court found that no such framework exists. Although the Bulgarian Constitutional Court had accepted the necessity of continuity in the absence of new appointments, it did so without grounding this solution in a concrete legislative basis, and the CC decision did not fill the gaps.

On this basis, the ECJ concluded that the current legislative framework in Bulgaria lacks the necessary safeguards to ensure the independence of the Inspectorate in its post-mandate functioning and indeed can not meet the standards for judicial independence under Article 19(1) TEU and Article 47 CFR. The Court expressly held that the independence of the judiciary is incompatible with a national practice whereby a judicial oversight body, whose members are elected for a fixed term by Parliament and entrusted with sensitive disciplinary functions, continues to operate after the expiry of that term in the absence of a clear and precise legal basis.

The judgment serves not merely as a rebuke of Bulgaria’s current practices, but as a systemic warning to any Member State allowing legal ambiguity to erode judicial independence. 

Signs of the judgment’s legal impact have already begun to surface. One month after the ECJ ruling, the Supreme Administrative Court cited it in a case involving the Inspectorate, concluding that due to the expiry of its mandate, the body no longer had competence. 15 Later, the larger panel of the same court overturned this decision on the grounds that the conclusion concerning the Inspectorate was incorrect. This immediate jurisprudential response underscores the judgment’s practical relevance, even if broader structural change has yet to follow.

Whether Bulgaria will take steps and comply with the ruling remains uncertain. But that response will serve as a key test – not only of the country’s commitment to judicial independence but also of the practical effectiveness of EU law as a mechanism for defending rule of law principles within the Union.

The ECJ’s reasoning should prompt the immediate replacement of officials serving beyond their mandates – a situation that undermines legal certainty and democratic legitimacy. The interpretation should logically extend to the Supreme Judicial Council itself – a body with even greater influence over the judiciary and which also continues to operate beyond its constitutionally mandated term.

 Legal reforms are needed to introduce effective safeguards against similar institutional deadlocks in the future. And lastly, the Bulgarian Constitutional Court, which is currently seized with a case concerning the mandate of the acting Prosecutor General, should align its interpretation with the EU law standards articulated by the ECJ.















 



























  1. Council of Europe, Demolition of Roma Houses in Sofia: Statement by Council of Europe Congress’ Standing Rapporteur on Human Rights, News, 2025, https://www.coe.int.
  2. European Commission, 2024 Rule of Law Report: Country Chapter on the Rule of Law Situation in Bulgaria, (Brussels: European Commission, 2025), download here.
  3. Rafał Mańko, ECJ Case Law on Judicial Independence: A Chronological Overview, BRIEFING, EPRS | European Parliamentary Research Service, Members’ Research Service, PE 753.955, download here.
  4. European Commission, 2024 Rule of Law Report: Country Chapter on the Rule of Law Situation in Bulgaria, (Brussels: European Commission, 2025), download here.
  5. The continued exercise of the functions of the Acting President of the Supreme Administrative Court and the Acting Prosecutor General, both figures with significant powers, can also be seen as a consequence of the expired mandate of the Supreme Judicial Council, which is responsible for appointing them.  
  6. Joined Cases C-313/23, C-316/23, and C-332/23, Inspektorat kam Visshia sadeben savet, judgment of 30 April 2025, CURIA, https://curia.europa.eu/juris/liste.jsf?num=C-313/23
  7. Constitution of Republic of Bulgaria, Art. 132a, para. 2, access here: https://www.parliament.bg/bg/const
  8. Ibid, para 6
  9. European Commission for Democracy through Law (Venice Commission), Opinion on the Judicial System Act: Bulgaria, CDL-AD(2017)018-e, adopted at the 112th Plenary Session (Venice, 6–7 October 2017), https://www.venice.coe.int/webforms/documents/
  10. Opinion of Advocate General Pikamäe, Joined Cases C‑313/23, C‑316/23, and C‑332/23, Inspektorat kam Visshia sadeben savet, delivered on 4 October 2024, CURIA, https://curia.europa.eu/juris/document/document.
  11. Constitutional Court of the Republic of Bulgaria, Decision No. 12 of 27 September 2022, Case No. 7/2022, Sofia, https://www.constcourt.bg/bg/act-9382
  12. There were also two dissenting opinions in the case, according to which the Inspectorate should not continue to execute its functions. See: Dissenting Opinion of Judge Yanaki Stoilov (Особено мнение на съдия Янаки Стоилов) in Constitutional Court of the Republic of Bulgaria, Case No. 7/2022, https://www.constcourt.bg/bg/act-9382 and Dissenting Opinion of Judges Krasimir Vlahov and Atanas Semov in Constitutional Court of the Republic of Bulgaria, Case No. 7/2022, https://www.constcourt.bg/bg/act-9384
  13. The court is not bound by the wording of the questions and often rephrases them so as to give a useful interpretation in the light of the circumstances of the main proceedings.
  14. See: e.g.: Associação Sindical dos Juízes Portugueses,  C-64/16, para. 44.
  15. Supreme Administrative Court of the Republic of Bulgaria, Ruling of 12 May 2025 in Administrative Case No. 3341/2025, Fifth Division, Presiding Judge Donka Chakurova, Judges Emil Dimitrov and Elka Atanasova, Sofia, https://info-adc.justice.bg/courts/portal/edis.nsf/
Tagged as
Law and Governance South East Europe © 2025 Law and Governance South East Europe
All rights reserved.