Key facts of the case:
Mr N.N., a candidate for the post of prosecutor, appealed the decision of the SJC for appointing Ms N.O. as prosecutor in the District Prosecutor’s Office (DPO) (Окръжна прокуратура, ОП) in the town of S. and requested the suspension of the decision. A lower panel of the SAC found the appeal inadmissible since Mr N. had no legal interest to challenge the decision. In its further appeal, Mr N. discussed, among others, whether the lower court violated his right to fair and public hearing by holding a closed session on admissibility. The proceedings took place under the Administrative Procedure Code (Административнопроцесуален кодекс).
Outcome of the case:
The ruling of the lower ВАС panel and its view that the appellant had no legal interest in the appeal were upheld. He had not been admitted to the competition, therefore the appointment of Ms O. did not reflect on his legal sphere. In addition, his right to fair and public hearing was not violated by the lower court’s closed session. The right could only exist in case the appeal was admissible – which it was not.
In this case an assessment was made whether the merits of the appeal could be reviewed. For this reason, in accordance with the law, the court gave the impugned ruling in a closed session. Pronouncing the ruling without the participation of the parties is not in violation of Art. 47 of the Charter of Fundamental Rights of the European Union. The right of parties to a fair and public hearing is only valid in case of an admissible appeal, protecting legally recognised substantive rights. The admissibility check in a closed session in accordance with domestic law does not contradict the above-mentioned Charter provision. […]
Requesting preliminaring ruling by CJEU is also unjustified. According to Art. 267 TFEU, the CJEU has jurisdiction to give preliminary rulings concerning the validity and interpretation of EU norms. In this case the issues, raised by the ruling, do not pertain to interpreting Art. 47 of the Charter, but to ruling on the correspondence of the actions of the court with the norm, therefore it does not come under Art. 267 TFEU. Moreover, the obligation of the national judge to request preliminary ruling arises when there is doubt as to the applicability and action of EU norms in the case under review, but not if the provision has already been interpreted, its meaning is clear and its interpretation does not raise doubt. In this case, in a number of cases the CJEU has re-iterated that the right to access to court and effective remedy is not unconditional and the requirements of admissibility cannot be overlooked due to the interpretation the appellant gives to the right to effective remedy (decision of 22 November 2007 under case С-260/05). For these reasons, the motion for request for preliminary ruling should be denied.