Country report, gender equality : how are EU rules transposed into national law? : Bulgaria 2020.
Date: 2020-09-18
Institutions: Directorate-General for Justice and Consumers
Subjects: Bulgaria, age discrimination, anti-discriminatory measure, application of EU law, equal pay, equal treatment, gender equality, labour market, maternity leave, national law, parental leave, paternity leave, pension scheme, report, sexual discrimination, sexual harassment, social security

Bulgaria 

2020 

EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.2 Gender Equality 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Country report  

Gender equality 

How are EU rules transposed into 
national law? 

Bulgaria 

Genoveva Tisheva 

Reporting period 1 January 2019 – 31 December 2019 

2020 

  Directorate-General for Justice and Consumers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Luxembourg: Publications Office of the European Union, 2020 

© European Union, 2020 

PDF  

 ISBN 978-92-76-18964-0 

ISSN 2600-0164  

doi:10.2838/379106  

  DS-BD-20-005-EN-N 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Country report - Gender equality – Bulgaria - 2020 

CONTENTS 

1 

2 

4 

5 

6 

7 

Introduction ............................................................................................... 5 
Basic structure of the national legal system ............................................ 5 
1.1 
List of main legislation transposing and implementing the directives .......... 7 
1.2 
1.3 
Sources of law .................................................................................... 7 
General legal framework ............................................................................ 9 
Constitution ........................................................................................ 9 
2.1 
Sex/gender/transgender ..................................................................... 15 
3.2 
Direct sex discrimination ..................................................................... 18 
3.3 
3.4 
Indirect sex discrimination ................................................................... 18 
3.5  Multiple discrimination and intersectional discrimination .......................... 20 
Positive action .................................................................................... 22 
3.6 
Harassment and sexual harassment ...................................................... 24 
3.7 
Instruction to discriminate ................................................................... 26 
3.8 
3.9 
Other forms of discrimination ............................................................... 26 
3.10  Evaluation of implementation ............................................................... 26 
3.11  Remaining issues ................................................................................ 26 
Equal  pay  and  equal  treatment  at  work  (Article  157  of  the  Treaty  on  the 
Functioning  of  the  European  Union  (TFEU)  and  Recast  Directive  2006/54)
 ................................................................................................................. 28 
General (legal) context........................................................................ 28 
4.1 
Equal pay .......................................................................................... 29 
4.2 
Access to work, working conditions and dismissal ................................... 32 
4.3 
4.4 
Evaluation of implementation ............................................................... 36 
Remaining issues ................................................................................ 36 
4.5 
Pregnancy,  maternity,  and  leave  related  to  work-life  balance  for  workers 
(Directive 92/85, relevant provisions of Directives 2006/54, 2010/18 and 
2019/1158) ............................................................................................. 37 
General (legal) context........................................................................ 37 
5.1 
5.2 
Pregnancy and maternity protection ..................................................... 38 
5.3  Maternity leave .................................................................................. 41 
Adoption leave ................................................................................... 44 
5.4 
Parental leave .................................................................................... 45 
5.5 
Paternity leave ................................................................................... 48 
5.6 
Time off for force majeure ................................................................... 48 
5.7 
Care leave ......................................................................................... 49 
5.8 
Leave in relation to surrogacy .............................................................. 49 
5.9 
5.10  Flexible working time arrangements...................................................... 49 
5.11  Evaluation of implementation ............................................................... 51 
5.12  Remaining issues ................................................................................ 52 
Occupational social security schemes (Chapter 2 of Directive 2006/54) .. 53 
Direct and indirect discrimination ......................................................... 53 
6.2 
6.3 
Personal scope ................................................................................... 53 
6.4  Material scope .................................................................................... 53 
Exclusions ......................................................................................... 54 
6.5 
6.6 
Laws and case law falling under the examples of sex discrimination mentioned 
in Article 9 of Directive 2006/54 ........................................................... 54 
6.7 
Actuarial factors ................................................................................. 54 
6.8 
Difficulties ......................................................................................... 54 
Evaluation of implementation ............................................................... 54 
6.9 
6.10  Remaining issues ................................................................................ 54 
Statutory schemes of social security (Directive 79/7) ............................. 55 
General (legal) context........................................................................ 55 
7.1 
7.2 
Implementation  of  the  principle  of  equal  treatment  for  men  and  women  in 
matters of social security ..................................................................... 56 
Personal scope ................................................................................... 56 

7.3 

3 

 
 
 
 
8 

9 

7.4  Material scope .................................................................................... 57 
Exclusions ......................................................................................... 57 
7.5 
Actuarial factors ................................................................................. 58 
7.6 
Difficulties ......................................................................................... 59 
7.7 
Evaluation of implementation ............................................................... 59 
7.8 
7.9 
Remaining issues ................................................................................ 59 
Self-employed  workers  (Directive  2010/41/EU  and  some  relevant 
provisions of the Recast Directive) ........................................................... 60 
General (legal) context........................................................................ 60 
8.1 
Implementation of Directive 2010/41/EU ............................................... 60 
8.2 
8.3 
Personal scope ................................................................................... 61 
8.4  Material scope .................................................................................... 61 
8.5 
Positive action .................................................................................... 62 
Social protection ................................................................................ 62 
8.6 
8.7  Maternity benefits............................................................................... 63 
8.8 
Occupational social security ................................................................. 63 
Goods and services (Directive 2004/113) ................................................ 65 
General (legal) context........................................................................ 65 
9.1 
9.2 
Prohibition of direct and indirect discrimination ...................................... 65 
9.3  Material scope .................................................................................... 65 
Exceptions ......................................................................................... 67 
9.4 
Justification of differences in treatment ................................................. 67 
9.5 
Actuarial factors ................................................................................. 67 
9.6 
Positive action measures (Article 6 of Directive 2004/113) ....................... 67 
9.8 
9.9 
Specific problems related to pregnancy, maternity or parenthood ............. 68 
9.10  Evaluation of implementation ............................................................... 68 
10  Violence  against  women  and  domestic  violence  in  relation  to  the  Istanbul 
Convention ............................................................................................... 69 
10.1  General (legal) context........................................................................ 69 
10.2  Ratification of the Istanbul Convention .................................................. 72 
11  Compliance  and  enforcement  aspects  (horizontal  provisions  of  all 
directives) ................................................................................................ 75 
11.1  General (legal) context........................................................................ 75 
11.2  Victimisation ...................................................................................... 75 
11.3  Access to courts ................................................................................. 75 
11.4  Horizontal effect of the applicable law ................................................... 76 
11.5  Burden of proof .................................................................................. 76 
11.6  Remedies and sanctions ...................................................................... 76 
11.7  Equality body ..................................................................................... 77 
11.8  Social partners ................................................................................... 78 
11.9  Other relevant bodies.......................................................................... 78 
11.10  Evaluation of implementation ............................................................... 80 
11.11  Remaining issues ................................................................................ 80 
12  Overall assessment .................................................................................. 81 
Annexes ........................................................................................................... 82 

4 

 
1 

Introduction 

1.1  Basic structure of the national legal system 

In terms of direct sources of law, the Bulgarian legal system is based on a strictly defined 
hierarchy of the sources of law as follows:  

EU  Law  has  supremacy  over  the  internal  legal  provisions  of  the  legislation  of  Bulgaria 
(including Constitutional provisions) which contradict it and it can have direct effect. This 
is also valid for the field of legislation related to gender equality. 

The Constitution 

The provisions of the Constitution are directly applicable. 

Decisions of the Constitutional Court  

These are  obligatory interpretations of the Constitution. The Constitutional Court is also 
entitled, among other competences, to declare provisions contained in an Act of Parliament 
to be anti-constitutional. The Court pronounces rulings on compliance with the Constitution 
of international treaties signed by Bulgaria, prior to their ratification, as well as rules on 
compliance  of  the  laws  with  the  universally  recognised  provisions  of  international  law, 
including compliance with the international treaties to which Bulgaria has adhered. 

International treaties  

According to Article 5, paragraph 4 of the Constitution:  

‘International  treaties,  ratified  in  compliance  with  the  constitutional  procedure, 
promulgated  and  entered  into  force  for  the  Republic  of  Bulgaria  are  part  of  the 
domestic  law  of  the  country  and  have  supremacy  over  those  provisions  of  the 
domestic law which contradict them.’  

Acts of parliament and codifications 

Among  the  major  codes  currently  in  force  in  Bulgaria  are  the  Administrative  Procedure 
Code of 2006, the Civil Procedure Code, effective as of 1 March 2008, the Social Insurance 
Code  of  1999,  the  Labour  Code  (LC)  of  1986,  the  Criminal  Code  of  1968,  the  Criminal 
Procedure  Code  of  2006  and  the  Family  Code  of  2009.  The  Law  on  Protection  from 
Discrimination, adopted in 2003, is also a sui generis codification in the field. The Law on 
Equality between women and men from 2016 is applicable for the issues of gender equality. 

Delegated legislation  

The Constitution and a number of Acts of Parliament provide and delegate to the Council 
of Ministers, the Ministers separately, other public bodies and/or officials  the authority to 
issue decrees, regulations, ordinances and instructions, to ensure the detailed regulation 
of specific areas of economic or social activity.  

The practice of the courts  

The judgments issued by the Bulgarian courts in individual proceedings have no universal 
applicability,  i.e.  they  are  binding  on  the  parties  involved.  At  the  same  time,  some 
judgments and interpretative decisions and decrees of the Supreme Administrative Court 
(SAC) and of the Supreme Court of Cassation are a source of law and also have an impact 
on legislation and practice in the field of gender equality. 

5 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The judicial system 

The administration of justice in Bulgaria is based on three instances. The courts are state 
bodies  that  administer  justice  in  civil,  criminal  and  administrative  cases.  The  following 
courts  exist  in  Bulgaria:  district  courts  –  113;  provincial/regional  courts  –  28; 
administrative courts – 28; specialised Criminal Court – 1; courts of appeal – 5; Specialised 
Criminal Court of Appeal – 1; military courts – 5; Military Court of Appeal – 1; Supreme 
Court of Cassation – 1; Supreme Administrative Court – 1. The organisation and activities 
of the Bulgarian courts are governed by the Law on the Judiciary.1 

A case that is under consideration by a court cannot be considered by any other body. 

Anti-discrimination and gender equality legislation 

Developments in Bulgarian legislation and practice in the field of anti-discrimination, equal 
treatment and  equal opportunities were made  possible thanks to the  process of the full 
integration of Bulgaria into the EU. 

The National Assembly is the legislative body which adopts legislation, including in the field 
of  anti-discrimination  and  gender  equality.  According  to  the  Law  on  Equality  between 
women and men from 2016, the Council of Ministers is the central authority responsible 
for defining policy on gender equality. The Council of Ministers adopts the National Strategy 
on Gender Equality and plans for its implementation. It adopts also  regulatory acts and 
decisions regarding gender equality. Namely, it has adopted the current National Strategy 
on Gender Equality 2016-2020 and the plans and reports on its implementation.  

A National Council on Gender Equality (NCGE) is established at the Council of Minister. It 
is a consultative body for cooperation and coordination between the structures of central 
and territorial bodies of the executive, and the structures of civil society.  

The Law on Equality between women and men designates the Ministry of Labour and Social 
policy as the person who is responsible for the management, coordination of and control 
over the implementation of the state policy on gender equality. The Minister is the Chair 
of the NCGE. 

The  section  in  this  Ministry  of  Labour  and  Social  Policy  ‘Equal  opportunities,  anti-
discrimination and social assistance’, which is part of the Directorate on ‘Policy for persons 
with disabilities, equal opportunities and social assistance’, serves as the Secretariat of the 
National  Council  on  Gender  Equality.  In  the  different  ministries  there  are  focal  point 
coordinators on gender equality.  

for  Protection 

from  Discrimination  (Комисия  за  защита  от 
The  Commission 
дискриминация, CPD) was created in 2005 as an independent jurisdiction under the Law 
on Protection from Discrimination and its mandate covers all types of direct and indirect 
discrimination,  including  discrimination  based  on  sex,  prohibited  by  law  and  by 
international  instruments  to  which  Bulgaria  is  a  party.  The  Commission  has  broad 
competences, including initiating discrimination cases of its own and assisting the victims 
of discrimination in bringing a claim. The administrative procedure before the Commission 
is very flexible and easy to follow by petitioners.  

According to the Law  on the Ombudsman, the latter is a public defender  who promotes 
and  protects  human  rights  and  fundamental  freedoms.2  The  Ombudsman  advocates 
through all legal means when there is a violation of human rights by act or omission of 

1  Law on the Judiciary, Закон за съдебната власт, Zakon za sudebnata vlast, Promulgated in S.G. No. 

64/2007, available in Bulgarian at: https://www.lex.bg/bg/laws/ldoc/2135560660. 

2   Law on the Ombudsman, Закон за омбудсмана Bulgarian version available at: 

https://www.lex.bg/laws/ldoc/2135467520. 

6 

 
 
 
 
 
 
 
 
 
 
 
State and municipal bodies or their administration, of persons who provide public services, 
as well as acts or omissions by private persons. This institution has broad competences, 
including initiation through the competent bodies, of a procedure for the interpretation of 
the  Constitution  or  for  challenging  the  constitutionality  of  Bulgarian  laws,  or  their 
conformity with the international standards in force for Bulgaria. The Ombudsperson also 
plays the role of National Prevention Mechanism according to the Optional Protocol to the 
UN Convention against Torture and other forms of inhuman and degrading treatment or 
punishment. Recently, the Bulgarian Ombudsperson obtained status A of compliance with 
Paris Principles. The institution had some initiatives but has not yet played an important 
role on the issues of gender equality and women’s rights. 

In  fact,  there  is  no  institution  dealing  exclusively,  on  a  permanent  basis,  with  gender 
equality in Bulgaria. The author’s observation is that over the last three years there have 
not been any substantial developments at the national level in the field of policy on gender 
equality; the functions of the governmental bodies were implemented formally and mainly 
just  technically,  which  also  created  the  conditions  for  the  backlash  of  these  issues 
conceptually and in practice in the country. 

1.2  List of main legislation transposing and implementing the directives 

- 
- 
- 
- 

Law on Protection from Discrimination;3 
Code of Social Insurance;4 
Labour Code;5 
Law on Equality between Women and Men.6 

1.3  Sources of law 

Based on the basic structure of the national legal system indicated above, the main sources 
of gender equality law are: 

- 

- 

- 

the Constitution with its main principles of equality and affirming the human rights 
and fundamental freedoms; 
the EU law – primary, secondary and the case law of the Court of Justice of the EU 
(CJEU); 
international treaties which form part of the domestic law and prevail over national 
legislation that contradicts them. 

Namely, such treaties at UN level in the field of gender equality are the CEDAW convention 
which  entered  into  force  in  1982;  its  Optional  Protocol,  in  force  since  2006;  the 
International  Covenant  on  Civil  and  Political  Rights  and  the  International  Covenant  on 
Economic, Social and Cultural Rights, both in force since 1970. 

In the framework of the Council of Europe, it is worth mentioning the European Convention 
on Human Rights and Fundamental Freedoms.  

The  Convention  on  preventing  and  combating  violence  against  women  and  domestic 
violence (CETS No. 210) was signed by the Bulgarian government in April 2016 and has 
the force of a political document for Bulgaria. 

3  Law on Protection from Discrimination – LPFD, Закон за защита от дискриминация, S.G. 86/2003, in force 

since 1 January 2004, Bulgarian version available at: http://lex.bg/laws/ldoc/2135472223. 

4  Code of Social Insurance, COSI, Кодекс за социално осигуряване, S.G. No. 110/99, in force since 1 

January 2000, full Bulgarian version available at: http://lex.bg/laws/ldoc/1597824512. 

5  Labour Code, Кодекс на труда, S.G. No. 26/86, in force since 1 January 1987, Bulgarian version available 

at: http://www.lex.bg/bg/laws/ldoc/1594373121. 

6  Law on Equality between Women and Men, Закон за равнопоставеност на жените и мъжете, S.G. 

33/2016, in force since 26 April 2016, available in Bulgarian at: http://lex.bg/bg/laws/ldoc/2136803101.  

7 

 
 
 
 
 
 
 
 
 
 
 
Case law is binding only for the parties in the concrete case and this is valid also for case 
law of the Supreme Court of Cassation and Supreme administrative court. Bulgaria is not 
a country where the law of precedent is valid. 

According  to  Article  130  paragraph  2  of  the  Law  on  the  Judiciary,  the  interpretative 
decisions of the Supreme Court of Cassation are mandatory for the bodies of the judiciary 
and the executive, for the self-governing local authorities and for all bodies which issue 
administrative acts.  

The decisions of the Commission for  Protection from Discrimination are binding only for 
the parties to the concrete case. The opinions and suggestions of this body are not binding. 

8 

 
 
 
 
2 

General legal framework 

2.1  Constitution 

2.1.1  Constitutional ban on sex discrimination 

The  Bulgarian  Constitution  of  1991  prohibits  sex  discrimination,  among  other 
discrimination grounds. 

Article  6  of  the  Constitution7  addresses  these  issues.  This  provision  proclaims  that  all 
people are born free and equal in dignity and rights, and that all people are equal before 
the law. No limitations or privileges are allowed based on race, nationality, ethnic origin, 
sex,  origin,  religion,  education,  belief,  political  affiliation,  personal  and  social  status,  or 
property status.  

2.1.2  Other constitutional protection of equality between men and women 

Article 14 of the Constitution stipulates that the family, maternity and children are under 
the protection of the state and society.  

Article 46 of the Constitution stipulates that spouses have equal rights and obligations in 
the marriage and in the family. Marriage is a voluntary union between a man and a woman. 

Another relevant provision is Article 47 of the Constitution, which declares that the care 
for and  education of children until they reach the age  of majority  represent a  right and 
obligation of their parents, with the support of the state. Special protection is ensured for 
mothers who are granted paid leave prior to and after giving birth, free obstetric care, an 
alleviation of working conditions and social assistance. 

All citizens have the right to work and the state creates the conditions for the realisation 
of this right. Everybody has the right to choose freely his/her profession and workplace. 

Workers and employees have the right to safety and health at work, to the minimum wage 
and  to  remuneration  correspondent  to  the  work  implemented,  as  well  as  the  right  to  a 
break and a right to a period of leave under the conditions defined by law (Article 48). 

Article 51 of the Constitution guarantees the right to social security and social assistance. 

The provisions of the Constitution have direct/immediate and horizontal effect (Article 5 
paragraph 2 of the Constitution). 

2.2  Equal treatment legislation 

Bulgaria  has  adopted  a  Law  on  Protection  from  Discrimination8  in  force  since  1  January 
2004.  The  Law  on  Protection  from  Discrimination  (LPFD)  contains  a  prohibition  of 
discrimination  on  a  broad  range  of  grounds,  including  on  the  ground  of  sex.  Besides  a 
prohibition of discrimination based on this ground, the ban encompasses the grounds of 
race,  nationality,  ethnicity,  human  genome,  citizenship,  origin,  religion  and  belief, 
education, conviction, political affiliation, personal or social status, disability, age, sexual 
orientation, family status, property status, or any other ground, defined by law or in an 
international treaty to which Bulgaria is a party (Article 4 paragraph 1 of the LPFD). 

7   Constitution of Bulgaria, Конституция на РБългария, S.G. No. 56/1991, Bulgarian version available at: 

https://www.lex.bg/laws/ldoc/521957377. 

8   Law on Protection from Discrimination, Закон за защита от дискриминация, S.G. No. 86/2003, in force 

since 1 January 2004, last amended by S.G. 7/2018. 

9 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Apart from the Commission for Protection from Discrimination, which deals with concrete 
cases of discrimination based on sex, there is no official body defined by law with a gender 
equality policy remit, with all the functions required by the EU directives.  

In  order  to  fill  the  gap  in  the  structure  of  the  mechanism  for  gender  equality  and 
Government  policy,  a  Law  on  Equality  between  Women  and  Men  (hereinafter  Gender 
Equality Law) was proposed by the Ministry  of Labour and Social Policy in 2015.  It was 
adopted by the Bulgarian National Assembly and promulgated on 26 April 2016. 9 The law 
regulates  state  policy  on  gender  equality,  sets  out  the  main  principles  of  this  policy, 
including  positive  measures  for  promoting  gender  equality  and  the  mechanism  for  the 
adoption of such measures. The law affirms the duties of the Ministry of Labour and Social 
Policy as the person that will manage, coordinate and control gender equality policy. State 
policy in this field is also implemented by units in the different ministries, in the regional 
administration and at the level of the local self-governance bodies. 

The Gender Equality Law sets out the main principles of policy on gender equality which 
are (Article 2): the equal opportunities, equal access and equal treatment of women and 
men  in  all  spheres  of  life;  the  prohibition  of  discrimination  and  gender-based  violence; 
balanced  representation of women and men in  decision-making and  overcoming gender 
stereotypes.  The  Law  provides  for  a  procedure  for  the  adoption  of  temporary  special 
measures for achieving gender equality.  

The law is not so new anymore but in practice, it has not been actively implemented since 
its  adoption.  Its  Final  provisions  envision  that  six  months  after  its  entry  into  force,  the 
respective civil servants responsible for gender equality would be appointed and the rules 
and procedure of the consultative body on gender equality would be updated according to 
the  new  law.  In  fact,  the  Regulation  on  the  structure,  organisation  and  activities  of  the 
National  Council  on  Gender  Equality  was  adopted  at  the  end  of  2016.10  The  temporary 
special measures and the measures against gender-based violence have not been adopted 
yet. 

By the end of 2018, only minor steps had been undertaken for the implementation of the 
law. Namely, in additional to the 30 coordinators at national level – persons responsible in 
the  ministries  and  agencies,  and  independent  bodies  –  28  regional  coordinators  and  12 
deputy coordinators for equality between men and women were appointed among regional 
administration representatives in the country. The newly selected coordinators underwent 
initial  training  on  gender  equality  at  the  end  of  2017.  The  results  of  the  Report  of  the 
regional coordinators for 201711 show that the mechanisms on gender equality in Bulgaria 
are still very new and  have to be developed.  In the meantime, at the  end of 2018, the 
National  Action  Plan  for  promotion  of  gender  equality  for  the  period  2019-2020  was 
adopted.12 

The  situation  described  above  in  the  previous  paragraph  also  indicates  that  the  Gender 
Equality  Law  adopted  as  it  is  –  an  administrative  law  stating  the  principles  and  main 
mechanisms  on  gender  equality  –  does  not  give  much  support  to  the  policy  on  gender 
equality  and  its  real  implementation  in  practice.  Since  2016  it  has  not  achieved  a 
substantial positive effect for equality and the protection of rights of women, including the 
most vulnerable.  

For  the  implementation  of  Article  16  of  the  Law,  a  special  symbol/award  for  effective 
implementation of gender equality policy was created. The Ministry of Labour and Social 

9   Law on Equality between Women and Men, Закон за равнопоставеност на жените и мъжете, S.G. 

33/2016, in force since 26 April 2016, available in Bulgarian at: http://lex.bg/bg/laws/ldoc/2136803101. 

10   Regulation on the structure, organisation and activities of the National Council on Gender Equality, 

Правилник за устройството, организацията и дейността на Националния съвет за равнопоставеност на 
жените и мъжете, adopted by Decree of the CM No. 302 from 15 November 2016. 
11   Available at: https://www.mlsp.government.bg/index.php?section=POLICIESI&I=409. 
12   Ibid. 

10 

 
 
 
 
 
 
 
Policy,  with  the  support  of  the  Consultative  body  on  gender  equality  –  the  NCGE  – 
established  the  rules  and  procedures  for  the  nominations  for  the  award.13  The  award  is 
presented each year in the form of a plaque and a special certificate. It represents a symbol 
of  achievements  and  should  work  as  an  incentive  for  organisations  and  institutions  to 
improve their management in accordance with the principles of equality. In 2018, several 
organisations in different categories were granted the award. 

Besides the publicity of the ceremony of the awards and the formal adoption of the action 
plans and the reports on their implementation, there have been no concrete activities nor 
development of gender equality policy in Bulgaria.  

Moreover, during the fierce campaign of external and internal forces against the Istanbul 
Convention and the whole issue of gender equality in Bulgaria in 2018, the Gender Equality 
Law and the mechanisms for gender equality policy did not provide an adequate reaction. 
They  did  not  help  for  countering  the  attacks  against  legally  recognised  notions  and 
standards  in  the  field  of  equality  between  women  and  men,  including  attacks  against 
explicitly  accepted  and  adopted  EU  standards.  The  NCGE  held  just  one  face-to-face 
meeting of its members at the end of 2018. 

13   Report on gender equality for 2017 by the MLSP: 

www.mlsp.government.bg/ckfinder/userfiles/files/politiki/ravni%20vyzmojnosti/normativni%20aktove/bg%
20zakonodatelstvo/REPORT_Equality_2017_FINAL.pdf. 

11 

 
 
 
 
3 

Implementation of central concepts 

3.1  General (legal) context 

3.1.1  Surveys on the definition, implementation and limits of central concepts of gender 

equality law 

In  the  last  five  years  there  have  been  no  surveys  or  reports  published  on  the  legal 
definition, implementation and limits in Bulgaria of central concepts of gender equality law, 
having a substantial impact on the theme. 

As a good example of sources of legal interpretation of the concepts and practice of the 
issue of discrimination, also including gender equality, is the Compilation of reports from 
a  scientific  conference  on  the  Legal  regulation,  problems  and  trends  of  protection  from 
discrimination.14 Special attention in this Compilation from 2018 present several articles 
of authors who tackle the issue of discrimination based on sex and gender. For example, 
the  article  ‘Indirect  discrimination  in  Bulgarian  and  European  law’  identifies  insufficient 
knowledge and consequent gaps in the understanding of the concept also in Bulgarian legal 
practice. ‘Some constitutional aspects of the protected ground of discrimination’ explores 
the possibilities and limitations of the equality clause of the Constitution. ‘Equality policies 
as  “hostage”  of  hate  speech’  links  the  standards  on  education  on  gender  equality  in 
universities with the limitations imposed by fierce hate speech in Bulgaria in about the last 
two years. Some more general issues discussed are the burden of proof, the independence 
of equality bodies, etc. 

3.1.2  Other issues 

Among  developments  in  2018,  it  is  worth  mentioning  the  interpretation  given  by  the 
Constitutional  Court  of  the  Republic  of  Bulgaria  of  the  concepts  of  sex,  gender  and 
transgender  in  the  motivation  part  of  Ruling  No  13 from  27  July  2018,  issued  on 
Constitutional  file  No  3/2018.  The  ruling  was  held  on  the  conformity  of  an  international 
treaty  signed  by  the  Republic  of  Bulgaria  on  21 April  2016  –  the  Council  of  Europe 
Convention on preventing and combating violence against women and domestic violence 
(the Convention), done on 11 May 2011 at Istanbul  – with the Constitution prior to the 
ratification of this treaty.15 

The interpretations of the concepts by the Constitutional Court go far beyond the mandated 
task and concrete questions under the mentioned case and they represent restrictions of 
the  meaning  of  some  of  these  concepts,  as  well  as  contradictions  to  legal  provisions  in 
force and to other legal practice. This Ruling was strongly influenced by public debates and 
also by political pressure against the ratification of the Istanbul Convention by Bulgaria. 

Here are quotations from the Ruling16 which are indicative of the restrictive interpretation 
of the Constitution and of important concepts related to gender equality: 

‘…In parallel with the policy of the Council of Europe on protecting women against 
gender-based violence and non-discrimination against women, the Council of Europe, 
in  a  number  of  its  acts,  calls  on  the  member  states  of  the  Council  of  Europe  to 
explicitly  prohibit  discrimination  based  on  “gender  identity”  in  national  non-
discrimination legislation and to include the human rights situation of “transgender 
people”  in  the  mandate  of  national  human  rights  institutions,  with  an  explicit 
reference to “gender identity” as a form of discrimination against women…’ 

14   Compilation of reports from a scientific conference on the Legal regulation, problems and trends of 

protection from discrimination – University of Economics – Varna (in cooperation with the Institute of Legal 
Studies to the Bulgarian Academy of Science and the Commission for Protection from Discrimination). 

15   Constitutional Court ruling No 13, Sofia, from 27 July 2018 promulgated in State Gazette No 

65/07.08.2018. 

16   Unofficial English translation of the ruling by UNICEF – Bulgaria – September 2018. 

12 

 
 
 
 
 
 
 
 
 
 
‘…The foregoing clearly shows the link between the policy  of Council  of Europe  on 
preventing  and  combating  violence  against  women  as  a  form  of  gender-based 
discrimination against women and the protection of certain rights of “transgender” 
persons…’ 

‘…The  Constitutional  Court  finds  that  despite  its  undeniable  positive  aspects,  the 
Convention is internally contradictory and this contradiction creates duality therein. 
Thus,  the  meaning  of  some  of  its  provisions  goes  beyond  the  Convention’s  stated 
purposes and its title…’  

‘…In  Article 1(1)(a)  and  (b)  of  the  Convention  the  term  “women”,  which  is 
undoubtedly  based  on  the  biological  understanding  of  the  sexes,  is  used  to  define 
the subject of protection against all forms of violence and discrimination. At the same 
time the legal definitions in Article 3(c)  of the  Convention (the English and French 
texts) include the term “gender”/“genre”, translated into Bulgarian as “пол” (“sex”), 
with  the  following  meaning:  “socially  constructed  roles,  behaviours,  activities  and 
attributes that a given society considers appropriate for women and men”. The term 
“gender” has been translated into Bulgarian as “социален пол” (“social gender”) only 
in  the  provision  of  Article 4(3)  of  the  Convention.  In  the  Convention  the  terms 
“sex”/“sexe”  and  “gender”/“genre”  exist  together,  with  “gender”  being  included 
among  the  grounds  of  discrimination  under  Article 4(3)  along  with  the  biologically 
determined  sex  –  “sex,  gender  ...”/“sexe,  genre  …”.  Thus,  gender  as  a  biological 
category (“sex”), but also gender as a social construct (“gender”) determined by the 
subjective perceptions and notions of the individual and of society about the role of 
men  and  women,  are  elevated  to  autonomous  and  equivalent  categories  of  the 
Convention with their own legal existence. The term “gender”/“genre” exists within 
the Convention as a separate category different from sex as a biological construct. 
The  Convention  divides  the  biological  and  social  dimensions  of  gender  and  goes 
beyond  the  view  of  the  gender  binary  of  the  human  species.  With  the  meaning 
specified  in  Article 3(c),  “gender”/“genre”  becomes  a  fundamental  term  that  also 
defines  the  meaning  of  other  phrases  used  in  the  Convention  and  based  on  this 
term…’ 

‘…“Gender”  is  used  in  the  phrases:  “gender  equality”  (Preamble),  “gender-based 
violence” (Preamble, Articles 2, 3, 4, 14), “gender identity” (Article 4(3)), “gender-
sensitive  policies”  (Article  6),  “gender  perspective”  (Article  6),  “non-stereotyped 
gender roles” (Article 14), “gendered understanding of violence” (Article 18, Article 
49(2)), “gender-based asylum claims” (Article 60), “gender-sensitive interpretation” 
(Article  60(2)),  “gender-sensitive  reception  procedures”  (Article  60(3)).  These 
phrases,  depending  on  the  interpretation,  may  lead  to  different  and  contradictory 
understandings  of  the  philosophy  of  the  Convention.  The  Convention  is  the  first 
international treaty signed by the Republic of Bulgaria which gives such a definition 
of the term “gender” (Article 3(c) of the Convention)……’  

‘…The …acts of the Council of Europe aimed against discrimination and violence on 
the basis of sexual orientation and gender identity clearly serve to clarify the meaning 
of  the  terms  “gender”  and  “gender  identity”  in  the  context  of  the  approach  of  the 
Council  of  Europe  to  promote  the  understanding  that  the  biological  and  social 
dimensions  of  gender  are  not  inextricably  linked  and  exist  independently  of  each 
other; the understanding of the ability of people to self-determine their gender; as 
well as to ensure full legal recognition by the State of the gender reassignment….’  

‘…The  analysis  of  the  terms  “gender”/“genre”,  translated  into  Bulgarian,  firstly  as 
“пол”  (“sex”)  and  secondly  as  “социален  пол”  (“social  gender”),  and  “gender 
identity”/“l’identité de genre”, translated into Bulgarian as “идентичност, основана 
на пола” (“sex-based identity”) indicates that the terms are connected and should 
be understood through  one another. The term  “gender”/“genre”  with the meaning 

13 

 
 
 
 
 
“socially constructed roles, behaviours, activities and attributes that a given society 
considers appropriate for women and men” reflects certain social and cultural notions 
of men and women created within a given society at a given moment. These notions 
are evolving to the extent that newer notions can exclude the older ones, for example 
that gender is biologically determined. From this point of view, a biological man might 
have a female “gender”/“genre” and vice versa. This leads to the possibility of the 
individual  choosing,  at  their  own  will,  a  different  “gender  identity”  that  might  not 
coincide with the biological one. This understanding expresses aspects of the “gender 
ideology”  –  a  collection  of  ideas,  convictions  and  beliefs  that  the  biologically 
determined  sexual  characteristics  are  irrelevant,  and  only  the  gender  self-
identification is relevant…’ 

‘…The  absence  of  a  common  understanding  of  the  term  “gender”/“genre”  is  also 
illustrated  by  the  active  public  and  political  debate  “for”  and  “against”  the  gender 
ideology that has been ongoing for over two decades in dozens of countries…’ 

‘…As  stated,  the  Convention  uses  two  terms  for  gender  –  “sex”  and  “gender”.  It 
introduces the phrase “gender identity”, which stems from the notion that the social 
dimension  of gender is  independent of the biological  one. Any distancing from the 
term “gender” as a biological attribute (man/woman) distances the Convention from 
the stated purposes of protecting women against all forms of violence. The internal 
contradiction in the Convention is obvious  when comparing the purposes  stated in 
Article 1  of  the  Convention  and  its  title  with  the  term  “gender”  as  defined  in  the 
Convention.  Moreover,  the  very  definition  of  the  term  “gender”  would  have  been 
redundant, if the stated purpose of the international treaty actually corresponded to 
its title “… on preventing and combating violence against women …”. This duality of 
the terminology, of the meaning of the terms used, in practice does not lead to the 
achievement of gender equality, but rather blurs the differences between sexes thus 
resulting in the principle of equality losing its meaning…’ 

Thus the Constitutional Court provides an interpretation of the term ‘gender’ which goes 
against the principle of gender equality and undermines the meaning and understanding 
of  related  terms  and  notions  recognised  in  EU  law  and  to  which  Bulgaria  had  already 
adhered. The Court deliberately dissociates the term of ‘gender’ from ‘sex’ and attributes 
it only to the blurred concept of ‘gender ideology’ which was introduced from abroad to 
public and political debate at the end of 2017 in Bulgaria. This wrong interpretation of the 
term  ‘gender’  was  broadly  disseminated  and  applied,  although  it  should  be  understood 
only in connection with the assessment of conformity of the Istanbul Convention with the 
Constitution.  The  ruling  also  contains  clear  limitations  to  already  achieved  standards  of 
non-discrimination, like the recognition by Bulgarian Law of discrimination based on gender 
reassignment and limits the rights of transgender people, almost excluding the possibility 
for adding gender identity as a separate ground for discrimination. 

The  Constitutional  Court  did  not  take  into  account  EU  standards  in  the  field  of  gender 
equality, and did not apply the CEDAW convention in relation to the notion of discrimination 
against women. Legislation in force and recent case law of the Supreme Court of Cassation 
were  also  overlooked.  Namely,  according  to  the  definitions  of  the  Gender  Equality  Law, 
equality of women and men means equal rights, equal opportunities for realisation and for 
overcoming obstacles in all spheres in society, where both sexes are free to develop their 
personal capabilities and to make choices without the limitations of the social roles defined 
by their respective gender. 

The legal provisions, including of the Anti-Discrimination law, and case law of the Supreme 
Court of Cassation in favour of the recognition and the rights of transgender persons, were 
also  disregarded  by  the  Constitutional  Court  in  its  interpretations  of  these  important 
concepts. 

14 

 
 
 
 
 
 
It  is  not  clear  yet  to  what  extent  this  unprecedented  ruling  which  may  be  called  highly 
politicised will influence further practice and public debates.  

3.1.3  General overview of national acts 

The  national  acts  that  contain  these  central  concepts  are  the  above-mentioned  Law  on 
Protection from Discrimination (LPFD), the Labour Code (LC) and also the Code of Social 
Insurance (COSI) and the Law on Equality between Women and Men. The LPFD regulates 
the protection against all forms of discrimination and contributes to its prevention. The LC 
regulates  the  labour  relations  between  the  worker  or  employee  and  the  employer  and 
related relations. The COSI contains provisions about social  relations in connection with 
statutory social insurance and supplementary social insurance. The Gender Equality Law 
regulates the implementation of state policy on equality between women and men. 

3.1.4  Political and societal debate and pending legislative proposals 

Since the end of 2017 and up to now, the issue of ratification of the Istanbul Convention 
has been at the centre of societal and political debates due to the introduction from abroad 
of the notion of gender ideology and the replacing of the legally recognised – at European 
(EU and Council  of Europe) and UN level  – concept  of gender  equality with this unclear 
notion. Moreover, this debate instigated from outside has been fuelled since the Bulgarian 
Presidency of the European Council (in the first half of 2018), the Euro-sceptic attitudes 
and those overtly against the European Union.  

Unfortunately, the strong attacks against the Istanbul Convention and gender equality as 
a  whole,  against  central  concepts  of  equality  –  like  sex,  gender,  transgender,  gender 
equality, sexual orientation, gender-based violence  – found governmental institutions in 
Bulgaria unprepared and they could not explain basic standards and concepts to the public. 
The burden fell on non-governmental organisations which did not have the resources and 
the authority for that. NGOs, namely women’s NGOs, were the most active supporters and 
participants  in  the  debates  for  the  protection  of  the  standards  and  basic  concepts  of 
equality.  In  the  meantime,  social  media,  political  parties,  and  even  people  from 
government were the driving forces behind attacks against NGO human rights defenders. 

All  this  created  an  atmosphere  of  mistrust  and  hatred  and  underestimation  of  gender 
equality  and  women’s  rights.  It  certainly  weakened  the  protection  of  human  rights  in 
Bulgaria and will impact the situation beyond 2018. 

The  author  illustrates  the  facts  below  with  some  of  the  numerous  publications  in  the 
media.17 

There is no new legislation pending concerning the main concepts of gender equality. The 
implementation  of  the  standards  already  adopted  on  gender  equality  remains  the  main 
challenge in this complex situation. 

3.2  Sex/gender/transgender 

3.2.1  Definition of ‘gender’ and ‘sex’ 

The terms ‘gender’ and ‘sex’ are not defined explicitly in Bulgarian legislation. The notion 
of ‘gender’ for the purpose of protection from gender-based violence and as provided in 
the  Istanbul  Convention  was  not  adopted,  as  the  ratification  of  the  Convention  was 

17   https://www.reuters.com/article/us-bulgaria-treaty/bulgaria-rejects-treaty-to-combat-violence-against-

women-idUSKCN1FZ0FJ. https://www.rferl.org/a/bulgaria-s-top-court-rejects-european-treaty-to-combat-
violence-against-women/29395266.html. https://www.bghelsinki.org/en/news/press/single/20180730-
press-istanbul-convention_EN/. https://www.euractiv.com/section/future-eu/news/istanbul-convention-
unconstitutional-in-bulgaria/. 

15 

 
 
 
 
 
 
 
 
 
 
 
 
rejected.  The  Ruling  of  the  Constitutional  Court,  mentioned  above  in  detail,  gives  the 
interpretation of the Court of this term, or rather, shows the misconception of this term 
which was, in practice, institutionalised by the court ruling. The ruling of the Court is not 
an interpretative decision on the constitutionality of a legal provision: it is the expression 
of  another  competency  of  the  Court  –  the  very  rarely  used  competence  to  rule  on 
constitutionality of treaties prior to their ratification. The ruling on the constitutionality of 
the Istanbul Convention is not related to a law in force in Bulgaria and the principle that 
the decisions of the Constitutional Court are valid erga omnes and are obligatory for all is 
not valid in this case. This particular ruling has limited application and might be obligatory 
for  governmental  bodies  only  in  the  context  of  future  ratification.  Despite  that,  the 
interpretation given by the Constitutional Court and the blurring of the notion of gender 
has  been  widely  quoted  and  referred  to  in  connection  with  application  of  Bulgarian 
legislation  and  policies.  The  ruling  is  also  used  wrongly  against  and  for  attacking  those 
citizens  and  groups  who  think  in  a  different  way  and  hold  a  positive  opinion  about  the 
Istanbul Convention. 

3.2.2  Protection of transgender, intersex and non-binary persons 

In  Article  4  of  the  Bulgarian  Law  on  Protection  from  Discrimination  there  is  a  ban  on 
discrimination based on various grounds, including sexual orientation but not explicitly on 
gender identity. Non-discrimination against the mentioned persons – transgender, intersex 
and non-binary persons – is not explicitly declared as a principle.  

According  to  paragraph  17  of  the  Additional  provisions  of  the  Law  on  Protection  from 
Discrimination,  the  ground  of  sex/gender  under  Article  4  paragraph  1  of  the  Law  also 
encompasses  the  cases  of  change  of  gender /  gender  reassignment.  The  persons  who 
change their gender according to the law are protected upon change respectively as males 
and females. 

It  is  worth  quoting  paragraphs  from  the  Ruling  of  the  Constitutional  Court  mentioned 
above.18 

‘The Constitution and the entire Bulgarian legislation are built on the understanding 
of the gender binary of the human species. In fact, the Constitution clearly perceives 
the social dimension of gender in interaction with its biological determination … In 
short, the term “gender” is used by the constitutional legislator as a unity of biological 
determination and social construct. The social dimension of the Constitution does not 
create  a  social  gender  independent  of  the  biological  sex  as  provided  for  in  the 
Convention. 

Traditionally, human society is built on gender binary, that is the existence of two 
opposite  sexes,  each  being  assigned  specific  biological  and  social  functions  and 
responsibilities. Biological sex is determined at birth and is in the foundation of the 
sex for the purposes of civil matters. The importance of the sex for the purposes of 
civil  matters  in  the  legal  regulation  of  social  relations  (cohabitation,  parenthood) 
requires clarity, indisputability, stability and security.’ 

3.2.3  Specific requirements 

The Bulgarian legislation in principle allows implicitly, although not explicitly, the change 
of  sex / legal  gender.  It  regulates  the  consequences  related  to  the  issuance  of  new 
personal documents, as well as the protection of transgender persons from discrimination.  

18   Constitutional Court ruling No 13, Sofia, from 27 July 2018 promulgated in State Gazette No 

65/07.08.2018. Unofficial English translation of the ruling by UNICEF – Bulgaria – September 2018. 

16 

 
 
 
 
 
 
 
 
 
 
According  to  Article  9  paragraph  1  of  the  Law  on  Bulgarian  Personal  Documents  from 
2009:19  

‘Where  there  is  a  change  in  the  names,  personal  identification  number,  gender, 
nationality, or substantial and permanent changes in facial image of a person, they 
are obliged to submit an application for a new Bulgarian identity document within 30 
days.’ 

Pursuant  to  Article  16  paragraph  1  of  the  Regulation  for  Issuing  Bulgarian  Personal 
Documents from 2010,20 the marker of sex/gender is among the obligatory personal data 
to be contained in the Bulgarian personal documents. Furthermore, pursuant to Article 20 
paragraph 2 and Article 22 paragraph 7 of the Regulation:  

When changing elements of the personal civil status, in the cases when the change is not 
reflected  in  the  National  Population  Database,  the  application  for  change  in  the  identity 
card or passport shall be accompanied by:  

-  

-  

-  

in the case of change in the personal identification number – a certificate from the 
respective municipal administration on the permanent address of the applicant; 
upon  change  of  the  names  –  official  document  certifying  the  change,  as  well  as  a 
certificate from the respective municipal administration on the permanent address of 
the person for the change made in his personal registration card;  
in the case of gender change – an official document from the respective competent 
authorities. 

Another relevant provision that might concern the gender change implicitly is Article 19 of 
the Civil Registration Act from 1999:21  

‘A change in the first, middle or last name of a person is accepted by the court based 
on the written request of the principal, where the name causes ridicule or disgrace, 
or is publicly unacceptable, and where important circumstances require.’ 

Change of gender may be included in ‘important circumstances’. 

The gender marker change is sought through a court decision in Bulgaria. Court Decision 
No.  16/30.05.2017  of  the  Supreme  Court  of  Cassation22  issued  under  civil  case 
No. 2316/2016 г., 4th civil division, provides a set of requirements.  

Two cumulative criteria are drawn by the Supreme Court of Cassation (SCC) in order to 
consider and decide a case of gender change: a medical criterion – the existence of the 
status  of  transsexuality,  which  is  defined  by  a  complex  medical  expert  opinion;  a  legal 
criterion, and namely, the need for the transsexual person to prove before the court her/his 
serious and unwavering intent to change the gender role performed psychologically and 
socially. 

Therefore, individuals cannot be obliged to undergo a surgical intervention to modify their 
body without their consent as a prerequisite for changing legal sex / gender marker; on 
the  other  hand,  the  claimants  who  allege  transsexuality  need  to  prove  before  the  court 
their serious and unwavering intent to change their legal sex / as a minimum, a hormone 
replacement therapy  for sex transitioning initiated is required/. In the specific case, the 
claimant was an intersex person according to the definitions proposed above. 

19   https://www.lex.bg/laws/ldoc/2134424576 Law on Bulgarian Personal Documents, Закон за българските 

лични документи. 

20   https://lex.bg/bg/laws/ldoc/2135663268 Regulation for Issuing Bulgarian Personal Documents, Правилник 

за издаване на българските лични документи.  

21   https://www.lex.bg/laws/ldoc/2134673409 Civil Registration Act, Закон за гражданската регистрация 
22   Issued under civil case No. 2316/2016 г., 4th civil division. 

17 

 
 
 
 
 
 
 
 
 
 
 
As  mentioned  above,  protection  by  anti-discrimination  law  requires  change  of  the  legal 
gender.  Nevertheless,  the  author  is  of  the  opinion  that  the  case  decided  by  the  SCC 
contains  indication  that  protection  is  due  even  before  change  of  legal  gender  and  in  all 
cases during the court procedure. The author of the report would suggest the use of the 
anti-discrimination  ground  of  ‘personal  status’  in  order  to  justify  and  ensure  protection 
before the change of legal gender. 

3.3  Direct sex discrimination 

3.3.1  Explicit prohibition 

The  definitions  of  direct  discrimination  and  indirect  discrimination  correspond  to  the  EU 
definitions. The prohibition of discrimination (as ‘(…) privileges or restriction of rights’) is 
laid down in Article 6(2) of the Bulgarian Constitution. In Article 4 the LPFD contains the 
definitions  of  direct  (paragraph  2)  and  indirect  discrimination  (paragraph  3).  Direct 
discrimination  represents  any  less  favourable  treatment  of  a  person  compared  to  how 
another  person  is,  has  been  or  would  be  treated  under  comparable  circumstances.  The 
Labour Code (Article 8 paragraph 3) ensures special protection against direct and indirect 
discrimination, including that based on sex, in the exercise of labour rights and obligations.  
There is no specific definition of direct discrimination in case law. 

3.3.2  Prohibition of pregnancy and maternity discrimination 

Pregnancy  and  maternity  discrimination  are  not  explicitly  prohibited  as  direct  sex 
discrimination.  

3.3.3  Specific difficulties 

There are no specific difficulties in the application of the concept of direct discrimination. 

3.4  Indirect sex discrimination 

3.4.1  Explicit prohibition 

Indirect discrimination is explicitly prohibited in Article 4(3) of the LPFD and the Bulgarian 
definition is in compliance with the EU definition: to place a  person or persons who bear 
the  characteristics  mentioned  in  Article  4  paragraph  1,  or  persons  who  without  having 
these  characteristics,  together  with  those  bearing  these  characteristics,  suffer  less 
favourable treatment or are put23 in a less favourable position in comparison with other 
persons by means of an apparently neutral provision, criterion or practice, unless the said 
provision, criterion or practice can be objectively justified in view of a lawful aim and the 
means for achieving this aim are appropriate and necessary. 

The provision is defined more in detail in order to encompass the outcome of the  CHEZ 
Razpredelenie case, mentioned below. 

3.4.2  Statistical evidence 

Statistical  evidence  is  not  used  in  order  to  establish  a  presumption  of  indirect  sex 
discrimination. 

3.4.3  Application of the objective justification test 

National courts correctly apply the objective justification test and identify the concept of 
indirect  discrimination.  Examples  of  case  law  encompass  mainly  cases  of  indirect 
discrimination based on grounds such as ethnicity and disability. As there is no typical case 

23   Amendments with O.J. 105/2016. 

18 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
law  on  indirect  sex  discrimination  to  mention  here,  one  case  on  indirect  discrimination 
based  on  ethnicity  can  be  given  as  an  example  –  CHEZ  Razpredelenie  Bulgaria  AD  v 
Komisia za zashtita ot diskriminatsia. It was subject to Preliminary ruling under Article 267 
TFEU from the Administrativen sad Sofia-grad (Bulgaria).24 

The facts of the case: The third party, Ms Nikolova, runs a grocer’s shop in the Gizdova 
Mahala district of the town of Dupnitsa (Bulgaria), a district inhabited mainly by persons 
of  Roma  origin.  In  1999  and  2000,  an  electricity  supply  company,  CHEZ  Razpredelenie 
Bulgaria AD (CHEZ RB), installed electricity meters for all inhabitants of the Gizdova Mahala 
district  on  part  of  the  overhead  electricity  supply  network.  The  electricity  meters  were 
installed at a height between six and seven metres, whereas in other districts in the town, 
the meters were installed at a height of about 1.7 metres, making the meters more easily 
accessible to the consumer. In December 2008, Ms Nikolova, who is not Roma, lodged an 
application  with  the  Komisia  za  zashtita  ot  diskriminatsia  (Commission  for  Protection 
against Discrimination; the KZD) arguing that the reason for installing electricity meters 
at  height  in  the  Gizdova  Mahala  district  was  that  most  of  the  inhabitants  of  the  district 
were of Roma origin and accordingly, she was suffering direct discrimination on the basis 
of nationality. On 6 April 2010, the KZD found that the installation of electricity meters at 
height amounted to prohibited indirect indiscrimination on the grounds of nationality. This 
decision  was  annulled  on  19  May  2011  by  the  Varhoven  administrativen  sad  (Supreme 
Administrative Court) on the basis that, inter  alia, ‘the KZD had not indicated the other 
nationality in relation to the holders of which Ms Niklova had suffered discrimination’. The 
case  was  referred  back  to  the  KZD,  which  later  found  that  CHEZ  RB  had  directly 
discriminated  against  Ms  Nikolova  on  the  grounds  of  her  ‘personal  situation’,  as  the 
placement of the meters put her in a disadvantageous position compared with other CHEZ 
RB  customers  whose  meters  were  in  accessible  locations.  CHEZ  RB  brought  an  appeal 
against  the  decision  before  the  Administrativen  sad  Sofia-grad  (Administrative  Court, 
Sofia).  In  order  to  assist  in  making  its  decision,  the  Administrative  Court  sought  a 
preliminary  ruling  from  the  Court  of  Justice  of  the  European  Union  (CJEU)  in  February 
2014.  

The Administrative Court stated that the case should be considered from the point of view 
of the protected characteristic of ethnicity, rather than from the point of view of nationality 
or personal situation. In its view, by identifying herself with the population of Roma origin 
of the district, Ms Nikolova defined herself as a person of Roma origin and so the KZD was 
incorrect to hold her ethnic origin had not been established. Although inclined to consider 
that  the  practice  of  installing  electricity  meters  at  height  was  direct  discrimination,  the 
Court  was  unsure  if  the  practice  amounted  to  either  direct  or  indirect  discrimination. 
Finally, if the practice did amount to discrimination, the Court took the view that it would 
not be justified. It submitted 10 questions in relation to these points to the CJEU for its 
consideration. 

The  CJEU  held  that  the  indirect  discrimination  provisions  of  the  EU  Race  Directive  were 
intended to benefit persons who, although not themselves a member of the race or ethnic 
group  concerned,  nevertheless  suffered  less  favourable  treatment,  or  a  particular 
disadvantage, on the grounds of race or ethnicity. It was enough that a person suffers the 
same disadvantage alongside those of a certain ethnic origin provided the treatment stems 
from a measure based on the ethnic origin. 

The CJEU acknowledged that the practice was capable of objective justification; ensuring 
security of electricity supply and providing consumers with the ability to properly monitor 
electricity consumption were legitimate aims. 
The  national  courts,  however,  had  to  determine  whether  the  measures  used  by  the 
electricity company to pursue those legitimate aims were appropriate and necessary. The 

24   European Court of Justice (Grand Chamber) Date of decision: 16 July 2015. Link to full case: 

http://curia.europa.eu/juris/document/document_print.jsf?doclang=EN&text=&pageIndex=0&part=1&mode
=lst&docid=165912&occ=first&dir=&cid=4002632. 

19 

 
 
 
 
 
prejudice  suffered  by  the  people  living  in  the  district  would  have  to  be  weighed  in  the 
balance. 

The  case  was  decided  as  a  case  of  indirect  discrimination  and  justified  changes  in  the 
legislation  concerning  indirect  discrimination,  providing  broader  interpretation  also  for 
cases of indirect discrimination by association.  

There are specialist opinions in Employment Law in the UK, for example, that this is an 
important decision that employers should take into account when dealing with employee 
relations  issues  and  when  putting  together  rules  and  policies.  Employers  may  now  face 
claims  from  individuals  who  ‘suffer’  from  a  policy  which  disadvantages  a  group  with  a 
protected characteristic such as gender, race, religion, etc., even where the individual is 
not a member of that group. One such example would be a working father who may claim 
that he, too, suffers from a policy to require full-time work which is indirectly discriminatory 
against working mothers. 

The  potential  for  indirect  discrimination  claims  has  definitely  been  increased  by  this 
ruling.25 

3.4.4  Specific difficulties 

The case law of the Commission for Protection from Discrimination (CPD) and of the courts 
has so far mainly dealt with the notion of direct discrimination. Despite initial difficulties in 
dealing  with  the  concept  of  indirect  discrimination,  the  equality  body  and  the  Supreme 
Administrative Court show a better understanding in their practice. 

3.5  Multiple discrimination and intersectional discrimination26 

3.5.1  Definition and explicit prohibition 

Multiple discrimination is explicitly addressed in the Law on Protection from Discrimination. 
Namely,  multiple  discrimination  is  addressed  in  the  Additional  Provisions  (paragraph  1 
p. 11) as discrimination based on more than one ground.  

Furthermore, Article 11 paragraph 2 obliges governmental bodies, public bodies and the 
bodies of self-government to take priority measures for ensuring equal opportunities for 
people who are victims of multiple discrimination as groups in a disadvantaged position, 
and more specifically in the field of education and vocational training. 

The anti-discrimination remedies in Bulgaria do allow applicants to simultaneously invoke 
several  grounds  of  discrimination  in  the  same  claim.  This  is  favoured  both  by  explicit 
recognition of the concept itself but also by the procedure proposed in such cases by the 
Commission for Protection from Discrimination. 

According to Article 48 of the LPFD, the Commission examines the incoming complaints in 
specialised  chambers  based  on  the  alleged  discrimination  grounds.  The  chambers  are 
permanent chambers for a specific ground and also a separate extended chamber of five 
members when multiple discrimination cases  are  at stake (Article 48 paragraph 2). The 
members of the latter are not fixed and it is defined ad hoc. The Commission notes in its 
reports that anti-discrimination provisions are contained also in other pieces of legislation, 
like the Labour Code, the COSI, the Law on Health, the Law on Integration of Persons with 
Disabilities, the Law on Education, the Law on Employment Promotion, the Child Protection 

25   https://www.menzieslaw.co.uk/case-update-2-indirect-discrimination-wider-implications/. 
26   See for more information Fredman, S., Intersectional discrimination in EU gender equality and non-

discrimination law (2016) European network of legal experts in gender equality and non-discrimination, 
available at: https://www.equalitylaw.eu/downloads/3850-intersectional-discrimination-in-eu-gender-
equality-and-non-discrimination-law-pdf-731-kb. 

20 

 
 
 
 
 
 
 
 
 
 
 
 
Law,  the  Law  on  Social  Assistance,  the  Law  on  Higher  Education,  etc.  Many  of  the 
provisions of these laws precede in time the Anti-Discrimination Law. Complex situations 
where more anti-discrimination grounds and provisions of national but also of European 
and international law are involved, are tackled by the extended chamber.27 

Therefore,  the  author  would  assess  that  the  legislative  architecture  of  the  protection 
against discrimination in Bulgaria favours recognition by the quasi-judicial body, but also 
by the courts of multiple/intersectional discrimination. There is explicit legal recognition of 
multiple  discrimination  in  the  anti-discrimination  legislation,  and  the  law  and  procedure 
are well codified, which make the prerequisite for this recognition. 

3.5.2  Case law and judicial recognition 

There  is  no  specific  case  law  in  the  field  which  has  an  impact  on  the  concept  of 
intersectionality, including gender, and specifically in the field covered by EU standards on 
equal treatment which are under consideration. Although there is good basis for developing 
further legal practice, there are few relevant examples of legal cases where sex/gender is 
one of the discrimination grounds at stake. 

There follows an example of a case decided in 2017 by the Commission, where the ground 
of sex is involved in parallel with the one of family status.28 The complaint challenges the 
Civil Registration Act based on these compound grounds. This act requiring that Bulgarian 
citizens must have a father’s name is, according to the applicant, humiliating for mothers, 
single mothers and children with an unknown father, and it assigns to mothers a secondary 
role in defining the second and the family name of their children. The applicant proposes 
that  the  notion  of  ‘father’s  name’  be  replaced  by  ‘family  name’  or  by  ‘father’s  and/or 
mother’s  name’.  The  Commission  admits  that  the  situation  with  the  father’s  name  in 
Bulgaria is really not so frequent and is part of the name tradition in the country. The use 
of the name of the father allows the manifestation of the child-father link and for affirming 
the emotional relations between the two of them. This is in the interest of the child as it 
ensures the care for the child by the two parents. Therefore, according to the members of 
the  extended  panel,  this  should  be  regarded  as  a  positive  measure  in  the  interest  of  a 
vulnerable group – minor children. It is true that this solution contains inequality of women 
and  men  but  in  view  of  the  objective  pursued,  this  inequality  is  objectively  justified.  In 
addition, it is said that it is the right of the child and his/her parents to adopt the traditions 
of the community of their origin. These are practices which represent traditional norms of 
behaviour.  The  adoption  of  a  different  solution  based  on  formal  equality  would  bring 
negative  solutions,  even  mocking  and  partial  isolation  of  the  child.  Therefore,  no 
discrimination was found. 

It is the author’s opinion that the arguments of the decision are not convincing. It is a pity 
that in this case the Commission did not identify the obvious direct discrimination faced by 
the complainant – but also by all women in Bulgaria – in this very important private sphere, 
including the clear non-compliance with the CEDAW convention. Furthermore, there is no 
clear analysis of the compound discrimination alleged and justification of the decision of 
the extended panel. 

In cases where grounds of discrimination are alleged simultaneously, the practice of the 
Commission,  and  respectively  of  the  courts,  shows  that  the  complaints  are  examined 
separately, rather than in their interaction. There is no good practice of using comparison-
based tests in the case of several grounds of discrimination. 

27   Report of the Commission for its activities in 2017 – http://www.kzd-

nondiscrimination.com/layout/images/stories/2015/otchet/%D0%9E%D0%A2%D0%A7%D0%95%D0%A2.
2017.pdf. 

28   Decision No. 10/2017 on file No. 244/2012. 

21 

 
 
 
 
 
 
 
 
There  is  good  legal  basis  for  progress  in  the  field  but  the  application  of  the  concept  in 
practice still presents difficulties. 

3.6  Positive action 

3.6.1  Definition and explicit prohibition 

Positive action is allowed in Bulgarian legislation. There is no explicit definition of the term 
‘positive  action’.  Such  measures  are  provided  for  in  the  Law  on  Protection  from 
Discrimination (LPFD) and in the Law on Equality between Women and Men. 

Here are the different measures and the terms used: 

‘temporary  incentive / promotional  measures’  (justified  and  proportional  initiatives  of 
temporary nature aiming at removing obstacles to balanced representation of women and 
men  or  to  equal  status  of  the  representatives  of  one  sex  or  of  the  sex  put  in  unequal 
position).29 Article 15 of the Law provides that the temporary promotional measures are 
applied by the bodies of the executive for a defined period of time until the achievement 
of their objectives for balanced representation, equal opportunities and equality between 
women and men in the sphere where inequalities exist and persist. These measures are 
not yet defined and specified under the Law. 

‘promotional  measures’  –  for  encouraging/promoting  persons  belonging  to  the  less 
represented  sex  (or  ethnic  group)  to  apply  for  a  certain  job  or  position  and  for 
encouraging/promoting  the  vocational  development  and  participation  of  workers  and 
employees belonging to the less represented sex or ethnic group.30  

‘hiring the candidate of the under-represented sex’ – 

Positive action measures are allowed in the process of hiring for positions in the state and 
local government administration. According to Article 39 of the LPFD, if the candidates for 
positions  in  the  State  central  and  local  administration  have  equivalent  qualifications  in 
relation to the requirements  for the position,  the candidate from the  under-represented 
sex  will  be  appointed,  except  when  there  are  specific  circumstances  for  appointing  the 
other  candidate.  This  is  also  valid  for  determining  the  members  of  consultative  and 
managerial and other bodies in this sphere, except when they are determined by elections 
or are subject to a competition/tender. 

‘balanced  representation’  (Sharing  of  the  positions  by  women  and  men  in  power  and 
decision-making in all areas of life which represents an important condition for equality of 
sexes).31 

‘measures for balanced participation’ in education and training of men and women, as far 
and as long as these measures are needed.32 

‘special measures’ for individuals or groups of persons in a disadvantaged position based 
on discrimination grounds under Article 4 paragraph 1 of the LPFD, as long and as far as 
these measures are necessary.33 

‘measures  aimed  at  initiatives  exclusively  or  mainly  promoting  entrepreneurship  among 
women’, when they are the under-represented sex and  

29   Additional provisions paragraph 1 p. 6 of the Law on Equality between Women and Men. 
30   Article 24 LPFD. 
31   Additional provisions, paragraph 1 p. 3 of the Law on Equality between Women and Men. 
32   Article 7 paragraph 1 p. 13 of the LPFD. 
33   Article 7 paragraph 1 p. 14 of the LPFD. 

22 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
‘measures  aimed  at  initiatives  for  preventing  or  compensating  for  disadvantages  in  the 
professional careers of women’.34 

‘treating  people  differently  in  the  provision  of  goods  and  services  when  they  are  aimed 
exclusively or predominantly at one of the sexes’, if the aim is legitimate and if the means 
are adequate and necessary.35 

It  can  be  concluded  that  the  Bulgarian  legislation  on  positive  action  goes  beyond  the 
employment sphere and beyond EU standards in general. In the employment sphere, the 
regulation of positive action measures for the under-represented sex is an obligation for 
the employer. A general remark is that these measures still remain as a formal principle, 
despite detailed regulation, with limited practical implementation. 

3.6.2  Conceptual  distinctions  between  ‘equal  opportunities’  and  ‘positive  action’  in 

national law 

‘Equal opportunities’ is a concept adopted in the Law on Equality of Women and Men. It 
means  creating  conditions  for  realisation  of  equal  chances  and  ensuring  guarantees  for 
access to all spheres of social life, as well as achieving personal and professional realisation 
and development. (Additional provision paragraph 1 p. 2 of the Law). Equal opportunities 
of women and men in all spheres of social, economic and political life is stated as the first 
principle of the State policy of equality. Equal treatment of women and men and the ban 
of discrimination and violence based on sex is another principle enshrined in the Law.36 

3.6.3  Specific difficulties  

A  major  constraint  is  the  lack  of  knowledge  and  awareness  of  the  principle  by  the 
representatives  of  the  institutions.  There  is  no  reliable  monitoring  of  the  situation  on 
gender equality in Bulgaria and the identification of areas where to adopt positive measures 
for ensuring equality. 

One major obstacle to adoption and implementation of positive action is the widespread 
understanding  of  equality  as  formal  equality,  without  any  exception.  In  recent  years, 
according to the author of this report, this understanding was reinforced by the anti-liberal 
trends and attitudes against the promotion of the rights of more vulnerable persons and 
groups, like minorities. It also affects the societal attitudes against encouraging the rights 
of  women  compared  with  those  of  men,  where  needed.  Human  rights,  human  rights 
standards and human rights defenders are all affected. 

Another more concrete obstacle to the application of the concept of positive measures is 
the  inappropriate  interpretation  of  the  concept  by  the  Commission  for  Protection  from 
Discrimination. For example, in the above-mentioned multiple discrimination case related 
to the father’s name, according to the author inequality cannot be justified through the 
anti-discrimination principle of positive action in the interest of the child. 

In other more recent cases, the Commission – in order to justify exclusion of men from 
educational courses provided by a private  organisation  – uses, among other things, the 
argument that this could be considered a positive action measure taken according to the 
Gender Equality Law. The author is of the opinion that this law cannot be applied in the 
concrete case as the positive measures provided in the Gender Equality law are only those 
taken by the governmental bodies as an element of the State policy. This is valid also for 
the  temporary  special  measures  for  balanced  participation  of  both  sexes,  mentioned  in 
Article 7  paragraph  1  p.  13  of  the  LPFD.  This  is  just  for  illustration  of  the  difficulty  the 
principle presents even for the equality body. 

34   Article 7 paragraph 1 p. 18 of the LPFD. 
35   Article 7 paragraph 17 of the LPFD. 
36   Article 2 p. 1 and 3 of the Law on Equality between Women and Men. 

23 

 
 
 
 
 
 
 
 
 
 
3.6.4  Measures to improve the gender balance on company boards 

There are no measures, as provided or planned quota, for improving gender balance on 
company boards. The adopted approach by the government is soft policy with measures 
of a voluntary nature and also through the minimum standards for including information 
on gender balance in the annual activities’ reports of large public companies which were 
introduced by the Accountancy Act37 and with the amendment of the Law on Public Offering 
of  Securities.38  These  provisions  are  not  explicitly  on  gender  representation  and  gender 
balance on the company boards and on priority measures but are aimed at harmonisation 
with  CRD-Directive  2013/36  and  Directive  2014/95  on  the  disclosure  of  non-financial 
information. 

Nevertheless, they can form the basis for future steps for improving gender balance. 

3.6.5  Positive action measures to improve the gender balance in other areas 

There  are  no  positive  action  measures  adopted  in  other  fields,  like  in  political  decision- 
making. 

3.7  Harassment and sexual harassment 

3.7.1  Definition and explicit prohibition of harassment 

Harassment, along with sexual harassment, is explicitly forbidden and defined by the Law 
on  Protection  from  Discrimination.  According  to  Article  5  of  the  LPFD,  harassment  and 
sexual harassment represent discrimination. 

According to paragraph 1 p. 1 of the Additional Provisions, harassment is any unwanted 
conduct  based  on  the  grounds  defined  in  Article  4  paragraph  1,  expressed  physically, 
verbally or in any other way, which has as its purpose or effect the violation of the dignity 
of  the  person  and  the  creation  of  a  hostile,  degrading,  humiliating,  offensive  and 
intimidating environment. 

The definition complies with the EU requirements. 

3.7.2  Scope of the prohibition of harassment 

Bulgarian  law  goes  beyond  the  regulation  of  harassment  in  the  workplace  and  also 
explicitly covers protection from harassment in educational institutions (Article 31 of the 
Law),  and  harassment  in  the  area  of  the  establishment,  equipping  and  expansion  of  an 
economic  activity  (Article  37  paragraph  3).  Harassment  in  the  latter  sphere  is  explicitly 
defined as follows: the rejection or the acceptance by a person of conduct which represents 
harassment or sexual harassment cannot be a ground for taking a decision which affects 
this person. 

As there is no limitation by law of the application of the concept of harassment in other 
spheres, it is the author’s opinion that protection is valid for all spheres. 

3.7.3  Definition and explicit prohibition of sexual harassment 

According to paragraph 1 p. 2 of the Additional Provisions of the LPFD, sexual harassment 
is any unwanted conduct of a sexual nature, expressed physically, verbally or in any other 

37   ‘Accountancy Act’, Закон за счетоводството, Zakon za schetovodstvoto, available in Bulgarian at: 

https://www.lex.bg/bg/laws/ldoc/2136697598. 

38   Law on Public Offering of Securities, Закон за публичното предлагане на ценни книжа, Zakon za 

publichnoto predlagane na zenni knizha, available in Bulgarian at: 
https://www.lex.bg/laws/ldoc/2134697472. 

24 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
way, which violates the dignity and honour of the person and creates a hostile, degrading, 
humiliating,  offensive  and  intimidating  environment.  Namely,  sexual  harassment  occurs 
when a person refuses to accept such behaviour or the compulsion to accept it which might 
influence the taking of  decisions affecting this person. The definition corresponds to the 
EU standards. It is noted that in this definition only the effect on dignity is identified as 
sexual harassment. It would be better also to have the expression ‘which have as a purpose 
or effect’ in the definition of sexual harassment. 

3.7.4  Scope of the prohibition of sexual harassment 

Bulgarian law goes beyond the regulation of sexual harassment in the workplace and also 
explicitly covers protection from sexual harassment in educational institutions (Article 31 
of the Law), and both harassment or sexual harassment in the area of the establishment, 
equipping  and  expansion  of  an  economic  activity  (Article  37  paragraph  3).  In  the  latter 
sphere,  the  rejection  or  the  acceptance  by  a  person  of  conduct  which  represents 
harassment or sexual harassment cannot be a ground for taking a decision which affects 
this person. 

As there is no limitation by law of the application of the concept of sexual harassment in 
other spheres, it is the author’s opinion that protection is valid for all spheres. 

3.7.5  Understanding of sexual harassment as discrimination 

According to Article 5 of the LPFD, harassment, along with sexual harassment, are explicitly 
forbidden and defined as discrimination by the Law on Protection from Discrimination. 

3.7.6  Specific difficulties 

The case law consists of court cases and cases before the equality body initiated mainly 
by women concerning sexual harassment. The difficulty derives also from the fact that in 
most cases there are no witnesses of the discriminatory behaviour and it makes it difficult 
for the alleged victim to provide initial evidence. 

There are still gaps in the practical implementation: there are delays in proceedings, and 
the application of the burden of proof by the Commission for Protection from Discrimination 
(CPD) and by the courts has not always been in full compliance with EU standards. At the 
beginning of 2015, Article 9 (Burden of Proof) of the LPFD was amended and the correct 
wording  was  introduced  in  the  definition  of  the  rule  on  the  burden  of  proof  in  cases  of 
discrimination. Prior to that, the inconsistent practice of both the CPD and the courts was 
reflected in the level of proof required from women who were complaining in most of the 
cases.  As  a  result,  their  access  to  justice  was  limited.  After  the  legal  amendment  the 
situation has improved but the refining of the analysis and the developing of the gender 
approach in cases of sexual harassment is still needed. 

The  overall  backlash  in  attitudes  in  Bulgaria  towards  gender  equality  and  the  issue  of 
violence  against  women  is  also  expected  to  negatively  influence  the  development  and 
practical  implementation  of  the  concept  of  sexual  harassment.  In  addition  to  other 
dissuasive  and  re-victimisation  factors,  additional  pressure  is  exerted  against  women 
through public opinion and social media.  

As  an  example  of  the  intimidating  attitude  and  forming  only  a  small  part  of  the 
unprecedented attacks against women, are the articles in social media and the comments 
on television of Professor Mihail Konstantinov – a mathematician, former vice-chair of the 
Central Electoral Commission of Bulgaria. He is usually given media space and attention. 
Mr. Konstantinov was particularly critical of the Istanbul Convention throughout 2018 and 
was  also  allowed  to  disseminate  hate  speech  against  the  ‘Me  too’  movement  and  its 
exponents in Bulgaria. In a media article from October 2018 he erupted:  

25 

 
 
 
 
 
 
 
 
 
 
‘All this cretinism called “Me too”, these women “me-tutes” is a sign of total madness 
of a society. Those people are totally crazy. The movement “Me too” is one of the 
biggest abuses with law and democracy’.39  

3.8  Instruction to discriminate 

3.8.1  Explicit prohibition 

In Bulgaria instruction to discriminate is explicitly prohibited as an element of the notion 
of ‘incitement to discrimination’. ‘“Incitement to discrimination” is encouraging directly and 
intentionally, instruction to discriminate and persuading somebody to discriminate.’40 

3.8.2  Specific difficulties 

To the author’s knowledge, there are no specific difficulties in the field of discrimination 
based on sex. There are no relevant cases in relation to this discrimination ground; the 
provision  was  used  mainly  in  relation  to  other  grounds  such  as  ethnicity  and  sexual 
orientation. In cases related to other grounds, the equality body and the court had to deal 
with  hate  speech  and  incitement  to  discrimination,  with  both  issues  of  harassment  and 
incitement/instruction to discriminate. The courts have been cautious in their motivation 
and decisions, although positive outcomes have been achieved  in some cases. 

In the current circumstances of continuous attacks against gender equality, women’s rights 
and  women’s  organisations,  it  would  be  justified  to  initiate  cases  of  harassment  and 
instruction to discriminate, as these are often related to direct sex discrimination. 

3.9  Other forms of discrimination 

The  author  believes  that  other  forms  of  discrimination,  such  as  discrimination  by 
association  or  assumed  discrimination,  although  not  explicitly  defined  as  such,  are 
encompassed  in  the  definition  of  discrimination  ‘based  on  the  grounds  of  Article  4 
paragraph 1 of the LPFD’. Paragraph 1 p. 8 of the Additional Provisions provides that this 
means:  

‘…on the basis of the real, current or past existence, or assumed existence of one or 
more grounds in connection with the person discriminated against or with a person 
connected to the discriminated person.’  

‘Connected persons’ are also defined in the Additional Provisions (paragraph 1 p. 9). 

3.10 Evaluation of implementation 

The  author  considers  the  implementation  of  the  EU  law  concepts  in  Bulgarian  law  as 
formally satisfactory. The main concepts are introduced and explained. There is, however, 
discrepancy in the interpretation of main concepts of discrimination based on sex, gender, 
and transgender, including by the Constitutional court, that is a threat to the understanding 
and implementation of these principles by the institutions and by the magistrates.  

3.11 Remaining issues 

Despite  some  advances  in  the  scope  of  positive  action,  the  concept  has  not  yet  been 
applied in policy and practice. This is also true for the concept of multiple discrimination. 

39   http://www.focus-news.net/opinion/2018/10/11/47739/prof-mihail-konstantinov-premierat-tryabva-da-
bade-pozdraven-za-pravilnoto-si-deystvie-sreshtu-proyavenoto-otnoshenie-na-evropeyskite-rakovoditeli-
kam-balgariya.html. 

40   Additional provisions paragraph 1 p. 5 of the LPFD. 

26 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The legislation and policy on gender equality remains in part declaratory and still in favour 
of formal equality. 

The  author  would  like  to  mention  here  that  despite  the  widespread  hate  speech  and 
harassment  against  women’s  rights  defenders  in  the  year  2018,  in  the  course  of  the 
campaign  against  the  Istanbul  Convention,  the  Equality  body  did  not  use  its  broad 
competences  under  the  law  for  initiating  action,  in  compliance  with  their  competencies, 
against  those  who  perpetrated  the  harassment.  So,  amid  the  atmosphere  of  fierce 
opposition and intimidation which created obstacles for women and women’s defenders to 
access justice, there was no reaction by competent institutions. 

In a general Position of the Commission for Protection from Discrimination, from February 
2018, at the beginning of the opposition campaign, the Commission just generally noted 
‘…the frequent use of hate speech in public debate and action, including in social media…’. 
Furthermore, as another example of extreme positions, the Commission recently noted the 
debates around the Istanbul Convention:  

‘…Among  the  normal  conversations  and  debates  on  this  important  issue  many 
extreme  positions  were  expressed  that  went  beyond  the  limit  of  democratic 
discussion and turned into hate speech against concrete vulnerable groups….’ 

In  that  respect,  the  author’s  opinion  is  that  here  again,  in  this  timid  reaction  to  awful 
aggression against women and women’s defenders, it is obvious that women and women’s 
NGOs are not identified as particular targets and victims of discrimination also in the form 
of harassment, either.  

27 

 
 
 
 
 
 
 
4 

Equal  pay  and  equal  treatment  at  work  (Article  157  of  the  Treaty  on  the 
Functioning of the European Union (TFEU) and Recast Directive 2006/54) 

4.1  General (legal) context 

4.1.1  Surveys on the gender pay gap and the difficulties of realising equal pay 

There have not been surveys specifically focused on equal pay but the data given by official 
sources in Bulgaria are as follows: 

According  to  the  National  Statistical  Institute  (NSI)  from  its  latest  report  on  data  about 
women and men from 2018, the educational level of working women is higher compared 
to men. The percentage of women with a university education is 40.1 % and working men 
with such an education make up only 23.9 %. For the whole period from 2000 to 2016, 
the average remuneration of men is higher than that of women. After 2007, the tendency 
for  an  increase  in  men’s  remuneration  is  even  more  noticeable.  In  almost  all  economic 
activities the gender pay gap (GPG) is visible. The highest gap is recorded for the sector 
‘Health and social work’, where the remuneration of women is 38.4 % lower than men’s 
and in ‘Finances and insurance’, the GPG is 32.1 %. The remuneration amount is directly 
connected with the achieved educational level. The persons with a higher educational level 
of ‘doctor’ are the ones most highly paid – almost twice the average monthly salary for 
the country. For all educational levels, the salaries for men are higher than the ones for 
women. The GPG is highest at the educational level of bachelor’s and master’s degree  – 
the  gross  monthly  pay  of  women  with  the  same  levels  of  education  is  26 %  lower  than 
men’s.41 This is official information about GPG in groups with the same or comparable level 
of education, within the same sectors and sub-sectors. 

The GPG is expressed further in the value of pensions. In the segment of retired persons 
with low pensions, the ratio of women is higher. 89.5 % of women receive a basic pension 
of up to BGN 400 (about EURO 200), as do 62.7 % of men. 42.2 % of women and 17.3 % 
of men receive a basic pension of up to BGN 200 (about EUR 100). The maximum amount 
of BGN 910 (about EUR 450) is received by 45 567 men and only 8 189 women.42 Here, it 
is not possible to say clearly if it is among same educational level. Such figures are not 
available. 

It is indicative to mention the data presented by the Ministry of Labour and Social Policy 
(MLSP) in their Draft report for the implementation of gender equality policy for 2018: The 
report displays the GPG for 2017 according to the NSI – 12.7 %, which is said to be lower 
than the figure for 2016 – 13.2 %. Compared to the average percentage of GPG in the EU, 
which is 16 % according to EUROSTAT, the figure for Bulgaria is lower. It is the conclusion 
of  the  MLSP  that  the  data  mentioned  about  the  GPG  should  not  be  regarded  as  an 
expression  of  inequality  between  women  and  men.  It  is  said  that  differences  are 
conditioned  by  characteristics  of  the  employers  and  the  concrete  economic  activity,  the 
size of the firm, as well as by the individual characteristics of the employed persons – age, 
educational level, qualification, profession, and expertise. The reasons for the GPG include: 
traditions and stereotypes in the selection of education, which leads to sex segregation of 
the labour market; career development – delayed career development, longer maternity 
leave, difficult balance between work and family life; the new production technologies and 
the requirements for continuous training, vocational training and capacity building, which 
is a challenge for women who have to combine it with family obligations and chose family 
or work.43 

41   National Statistical Institute – ‘Women and men in Bulgaria’, ‘Жените и мъжете в РБългария’ 2018, 
http://www.nsi.bg/bg/content/16817/публикация/жените-и-мъжете-в-република-българия-2018. 

42   Ibid. 
43   Draft report on gender equality for 2018 – no official document yet, MLSP – April 2019. 

28 

 
 
 
 
 
 
 
 
4.1.2  Surveys on the difficulties of realising equal treatment at work 

Other surveys concerning the groups at risk from discrimination in the labour market were 
conducted by the Commission for Protection from Discrimination in the period 2016-2018. 
In  two  surveys  mandated  to  external  agencies,  it  was  confirmed  that  women,  including 
pregnant women, are among the most affected in Bulgaria by employment discrimination 
in  all  its  elements,  including  in  hiring,  granting  leave  for  childcare,  and  harassment.  In 
most of the cases, they face multiple forms of discrimination.44 

4.1.3  Other issues 

There are no other issues. 

4.1.4  Political and societal debate and pending legislative proposals 

The political environment, and the backlash in interpretation of main principles, especially 
in the last two years, may represent a threat even to the understanding of concepts largely 
accepted to date, such as equal pay and equal working conditions. 

4.2  Equal pay 

4.2.1  Implementation in national law 

The principle of equal pay is regulated in the Labour Code and in the Law on Protection 
from Discrimination (Article 14). The employer shall ensure equal remuneration for equal 
or equivalent work / work of equal value. This  principle shall apply to all types of pay  – 
any remuneration, paid directly or indirectly, in cash or in kind. The notion of equal pay 
includes  the  assessment  criteria  in  determining  the  labour  remuneration  and  the 
assessment  of  work  performance.  These  criteria  shall  be  equal  for  all  employees, 
regardless of the duration of the contract or the working time, and shall be determined by 
collective labour agreements or by internal administrative rules regarding salaries. 

The principle enshrined in the Law on Protection from Discrimination is not defined as a 
typical equal pay clause between men and women only but encompasses all discrimination 
grounds. 

Article  243  of  the  Labour  Code  (LC)  defines  the  equal  pay  principle  between  men  and 
women  as  ensuring  equal  remuneration  for  equal  or  equivalent  work,  by  also 
encompassing all elements of pay. 

The EU standards of equal pay are fully transposed in Bulgarian legislation. However, there 
is  a  big  gap  between  the  formal  recognition  of  the  equal  pay  principle  and  its 
implementation in practice. No specific and consistent legislative or policy measures have 
been adopted so far to address the gender pay gap. 

There is a specific procedure for the assessment of civil servants. 

In principle, no justifications for differences in pay for women and men are accepted. This 
is confirmed by the case law of the Commission for Protection from Discrimination.45 The 
case law on this issue is not recent but this case was the first important case in the field 
and its outcome and main principles impacted further case law.  

44   For example – National representative social science survey at territorial basis with the purpose of 

elaborating the profiles of groups who are most affected by discrimination (2016) – CPD – http://www.kzd-
nondiscrimination.com/layout/index.php/obshtestweni-pory4ki. 

45   E.g. Devnya Cement – Decision of the CPD No. 29/4.07.2006, confirmed by Decision No. 10594/1.11.2007 

of the Supreme Administrative Court. 

29 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The law provides, as an exception to the principle of non-discrimination in Article 7, for the 
possibility of more advantageous working conditions (which also include pay) in relation to 
different  working  experience  or  seniority,  when  it  is  objectively  justified  for  achieving  a 
legitimate aim with the means deemed necessary.  

4.2.2  Definition in national law 

There is no separate, explicit and general definition of pay in Bulgarian law.  

4.2.3  Explicit implementation of Article 4 of Recast Directive 2006/54 

Article 4 of Recast Directive is explicitly implemented through Article 14 of the LPFD, as 
mentioned above.  

4.2.4  Related case law 

The  legal  practice  on  ensuring  equal  pay  is  being  developed  by  the  Commission  for 
Protection against Discrimination. The Commission is still the preferred forum for women 
who seek protection against unequal pay. Although the case law mentioned below is not 
recent, as the first case which had an impact, it is worth mentioning it. 

The Devnya Cement case was decided by the Second specialised panel of the Commission 
and  was  confirmed  by  the  Supreme  Administrative  Court  119.  The  Commission  found 
continuous unequal treatment of the applicant, a female worker at Devnya Cement, in that 
she was provided with unequal pay for work of equal value, when compared to her male 
colleagues.  The  complainant  was  working  as  mill  operator  and  was  receiving  lower  pay 
than her male colleagues appointed to the same job position – the differences came both 
from  the  main  remuneration  and  from  additional  payments  for  seniority,  working 
conditions, like night work and overtime work, and bonuses.  

The Commission declared that it constituted both a violation of Article 14 paragraph 1 (the 
equal  pay  provision)  of  the  Law  on  Protection  from  Discrimination  (LPFD),  and  direct 
discrimination based on sex within the meaning of Article 4 paragraph 2 of the law. Before 
the Commission, the defendant could not justify the difference of BGN 45 (around EUR 23) 
in pay on a monthly basis vis-à-vis the applicant and to her detriment, compared to her 
male colleagues. The Commission ordered Devnya Cement to discontinue the practice of 
unequal treatment based on sex in the enterprise, and to amend the collective agreement 
so  as  to  include  guarantees  of  equal  pay,  based  on  sex  and  on  all  other  grounds,  as 
required by Article 14 paragraphs 1 and 2 of the Law on Protection from Discrimination.46 

There is no substantial  development of case law concerning equal pay in Bulgaria. As a 
general  comment  we  can  mention  the  lack  of  a  clear  gender  approach  in  cases  of  pay 
discrimination to the detriment of women. This is due, in the first place, to the fact that in 
the Anti-discrimination law (LPFD) equal pay is regulated as equal pay for all, based on all 
grounds.  

Secondly, as mentioned in this report, the fact that Section 3 of Chapter II of the LPFD is 
called ‘Protection in the exercise of the right to work’ is interpreted by the Commission in 
its practice as a separate ground of discrimination – discrimination in employment. Thus 
claims  for  equal  pay  are  considered  without  regard  to  any  grounds  for  discrimination, 
especially not the ground of sex.  

According  to  the  author  of  this  report,  the  interpretation  of  the  provision  of  Article  14 
paragraph 1 of the LPFD is problematic for the application of the provisions on equal pay 
and equality in working conditions as a whole. The provision of the LPFD which reads that 

46  Decision of the Commission for Protection against Discrimination No. 29/4.07.2006, confirmed by Decision 

No. 10594/1.11.2007 of the Supreme Administrative Court. 

30 

 
 
 
 
 
 
 
 
 
 
 
 
equal  pay  is  ensured  on  all  grounds,  without  a  specific  clause  on  women  and  men,  is 
detrimental  for  the  classical  principle  of  equal  pay  which  means  equal  pay  of  men  and 
women. This general clause of the LPFD shifts the focus from the deep gender aspects of 
unequal  pay  cases  and  creates  an  obstacle  to  building  relevant  case  law  specifically  on 
equal pay of men and women. 

4.2.5  Permissibility of pay differences 

As an exception to the principle of non-discrimination, in Article 7, paragraph 1 p. 5 of the 
LPFD, the law provides for the possibility of more advantageous working conditions (which 
also include pay) in relation to different work experience or seniority, when it is objectively 
justified  for  achieving  a  legitimate  aim  with  the  means  for  that  aim  deemed  necessary. 
The principle of equal pay being very strict according to Bulgarian law, it would be in very 
rare cases that this provision could be used for pay differences. 

The author refers to the data on gender pay gap and justifications given by the government 
in the Draft Report on Gender Equality for 2018, which was mentioned above. It is obvious 
that the pay differences representing the GPG are not correctly understood as such and 
are confused with other circumstances influencing these differences of pay between women 
and men. Therefore, despite the ban on pay discrimination based on sex, it might seem 
that differences are permissible as the reasons behind these differences are blurred. 

4.2.6  Requirement for comparators 

Comparators  are  not  explicitly  required  by  law  but  they  may  sometimes  be  required  in 
practice. 

4.2.7  Existence of parameters for establishing the equal value of the work performed 

Such parameters are not explicitly established by law. As mentioned above, the notion of 
equal pay includes the assessment criteria for determining labour remuneration and the 
assessment  of  work  performance.  These  criteria  shall  be  equal  for  all  employees, 
regardless of the duration of the contract or the working time, and shall be determined by 
collective labour agreements or by internal administrative rules regarding salaries. 

There  are  specific  rules  and  procedures,  for  example  for  the  assessment,  including  the 
periodic  assessment  of  civil  servants,  regardless  of  the  grounds  defined  in  Article  4 
paragraph 1 of the LPFD. These are Unified classification of positions in the administration 
and regulations on the remuneration of civil servants. 

4.2.8  Other relevant rules or policies 

To our knowledge there are no other relevant rules or policies. 

4.2.9  Job evaluation and classification systems 

There are as yet no such harmonised job evaluation and classification systems in Bulgaria. 
There are initial discussions about such systems. 

4.2.10 Wage transparency 

National law and case law do not significantly address the issue of wage transparency. 

31 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
4.2.11 Implementation of the transparency measures set out by European Commission’s 
Recommendation  of  7  March  2014  on  strengthening  the  principle  of  equal  pay 
between men and women  

The  European  Commission’s  Recommendation  of  7  March  2014  on  strengthening  the 
principle of equal pay between men and women was not specifically given attention and 
was not followed in Bulgaria. 

4.2.12 Other measures, tools or procedures 

There  are  no  other  specific  measures  taken  in  the  last  year  with  substantial  impact  on 
equal pay and equal working conditions for women and men. 

The following initiatives presented by the government can be mentioned, however:47  

A  priority  issue  for  the  Ministry  of  Education  and  Science  in  2017  was  the  increase  of 
remuneration for pedagogical experts in the pre-school and school sectors and attracting 
young specialists to the profession, as well as keeping them in this important sector, where 
possible. The sector being highly feminised, all improvements are pertinent to the problem 
of equal pay and the GPG. As a matter of fact, since 1 September 2017, the remuneration 
of  the  pedagogical  staff  was  increased  by  15 %  as  part  of  the  political  commitment 
undertaken by the government, in place since May 2017, for doubling the remunerations 
in the sector by the end of its mandate. Other incentives and additional payments were 
provided for those working in small towns, such as transport costs, payments for clothes, 
etc. 

There is a special EU-funded project in which the NGO ‘Gender project foundation/GPF’ is 
a partner, and which deals with GPG. It is called ‘Zero GPG – Gender equality: Innovative 
tool and awareness raising on GPG’. The project is about creating an enabling environment 
for tackling GPG through working with government, trade unions, employers’ associations, 
academics, and NGOs. A manual for trainers on countering GPG was created, as well as 
an  innovative  web-based  instrument  created  for  calculating  the  GPG.  The  results  of  the 
project  were  followed  by  the  government  and  endorsed  by  the  Ministry  of  Labour  and 
Social Policy.48 

4.3  Access to work, working conditions and dismissal 

4.3.1  Definition of the personal scope (Article 14 of Recast Directive 2006/54) 

The  author  considers  that  the  definition  of  a  worker  in  Bulgarian  law  is  in  line  with  the 
CJEU case law. Chapter 2 Section 1 of the Law on Protection from Discrimination regulates 
protection against discrimination in the employment sphere. Without explicitly indicating 
the personal scope of the protection, the law uses the term ‘employer’ which encompasses 
all relations between workers and employers under a labour contract. According to Article 
28 of the Law on Protection from Discrimination, this protection is also extended to civil 
servants under the special civil servants’ contracts. Those obliged to ensure equal pay and 
equal  access  to  work  and  working  conditions  are  the  employers.  The  definition  of  the 
concept  of  ‘employer’  is  contained  in  the  Additional  Provisions  of  the  Labour  Code, 
paragraph 1.1: the term ‘employer’ is associated with any physical or legal person, or its 
branches,  or  any  other  unit  which  is  autonomous  from  an  organisational  and  economic 

47   The Report on the implementation of the National plan on Gender equality for 2017, adopted by the Council 

of Ministers in July 2018 – http://www.gov.bg/bg/prestsentar/zasedaniya-na-ms/dneven-red-na-
zasedanieto-na-ministerskiya-savet-na-18-07-2018-g. 
The Report on the implementation of the Recommendations of the CEDAW Committee – 
https://www.mlsp.government.bg/ckfinder/userfiles/files/politiki/ravni%20vyzmojnosti/normativni%20akto
ve/bg%20zakonodatelstvo/Doklad%20CEDAW%202017.pdf. 

48   The project ‘Innovative tool and awareness raising on GPG’ – https://gender-bg.org/bg/proekti/archive-

proekti/33-proekt-zero-gpg-gender-equality.html. 

32 

 
 
 
 
 
 
 
 
 
 
point of view, and who/which hires workers and employees independently under a labour 
contract, including home workers or workers for distance working, as well as in cases of 
sending  a  worker  or  employee  for  temporary  work  to  another  enterprise  called  the 
beneficiary. It is to be noted that the definition of an employer was extended so that it is 
also  applicable  to  the  categories  of  home  workers,  distance  workers  and  temporary 
workers as a result of the amendments to the Labour Code in 2011 and 2012.49  

Discrimination based on the grounds indicated in Article 4 paragraph 1 of the LPFD is also 
prohibited in the field of the public and the real (economic) sector, directly or indirectly, in 
relation  to  the  implementation  of  an  economic  activity,  including  in  relation  to 
establishment,  equipment  and  development  of  such  an  activity,  according  to  Chapter  2 
Section 3 Article 37 paragraph 2. It means that also in the business sector and economic 
initiative,  and  not  only  in  employment  relations,  there  is  ban  of  discrimination  on  all 
grounds. 

4.3.2  Definition of the material scope (Article 14(1) of Recast Directive 2006/54) 

The  protection  given  by  Bulgarian  legislation  in  the  field  of  access  to  work  and  working 
conditions is almost in full compliance with the EU equal treatment directives (except for 
the lack of an explicit statement on equality in the benefits provided for by trade unions 
and other professional organisations). The main guarantees are provided by the Law on 
Protection from Discrimination, supplemented by the guarantees of the Labour Code (for 
labour  contracts)  and  by  the  respective  provisions  of  the  Law  on  Civil  Servants.50  The 
detailed protection corresponding to the requirements of the directive is provided in  the 
Law on Protection from Discrimination. Namely, Article 12 lays down the principle of non-
discrimination in the field of recruitment and Article 13 ensures the right to equal working 
conditions. Article 14 relates to the right to equal pay. Article 15 guarantees the right to 
equal conditions for vocational training and retraining, for upscaling qualifications or re-
qualification, for professional promotion, and promotion in terms of position or  rank, by 
ensuring  equal  conditions  for  professional  assessment.  Equal  criteria  in  applying 
disciplinary sanctions are required by Article 20 and Article 21 lays down equal conditions 
for the termination of employment. 

The protection provided by the law covers all aspects of working life and is extended to all 
types  of  employment  relations,  including  those  related  to  sex  discrimination  in  the 
implementation of military service in the armed forces, with the exception of activities and 
positions  where  sex  constitutes  a  determining  factor  –  Article  27  of  the  LPFD.  The 
protection  also  covers  civil  service  relationships.  In  addition  to  the  requirements  in  the 
Directive, Bulgarian law also contains protection against discrimination in unemployment. 

Article 37 paragraph 2 mentioned above extends this protection to the public sector and 
the sector of the real economy in all cases of the establishment, initiation, equipping or 
expansion of any economic activity. 

Article 36 lays down the principle of non-discrimination in the subscription to / adherence 
to, terms of membership and participation in trade unions and in all kinds of professional 
organisations, besides the requirement for specific education in professional organisations. 
Equality in the benefits provided by such organisations is not explicitly included but could 
be related to the equality in the terms of participation. 

Concerning the material scope of protection by the LPFD, it is worth mentioning again and 
analysing  the  provision  of  Article  13  paragraph  1  –  that  the  employer  ensures  equal 
working  conditions  regardless  of  the  grounds  under  Article  4  paragraph  1.  This  broad 
wording  creates  problems,  according  to  the  author  of  this  report.  The  expression 
‘regardless  of  the  grounds  under  Article  4’  may  entail  interpretations  in  the  direction  of 

49   S.G. 33/2011, 82/2011 and 7/2012. 
50   Law on Civil Servants, Закон за държавния служител – https://lex.bg/bg/laws/ldoc/2134673408. 

33 

 
 
 
 
 
 
 
 
considering the discrimination in the field of working conditions as a separate ground of 
discrimination, instead of regarding it as an area of life where discrimination based on the 
grounds indicated may take place. It is in fact the case that in some instances of case law 
this area is mentioned as a separate discrimination ground. The Equality body itself has a 
specialised  section  on  discrimination  in  the  exercise  of  the  right  to  work.  As  explained 
above, the area of protection against discrimination in the sphere of work is interpreted in 
the practice and structure of the Commission as if it were a separate area of discrimination; 
it is considered as discrimination in itself, without the need to specify one of the grounds 
mentioned in Article 4 of the law. It often results in gender-neutral consideration of cases 
related to employment discrimination based on sex. 

By this interpretation and broadening of the grounds of discrimination, the Commission for 
PFD  has  assumed  a  broader  competence  to  consider  and  decide  labour  law  cases  even 
when there is not a strictly defined separate discrimination ground. Thus the Commission 
might turn into a sort of labour court, or rather, labour jurisdiction, without having such 
specialised  courts  in  Bulgaria.  In  addition,  the  members  of  the  Commission  do  not 
necessarily have the education and preparation for hearing such cases, which would be of 
the competence of a court. 

The author mentions this because of the tendency which is in place. It shows how extended 
material scope can lead to extended procedural scope and competences. 

The  author  is  of  the  opinion  that  equality  in  employment  conditions  should  always  be 
measured  and  assessed  against  the  discrimination  grounds  mentioned  in  Article  4 
paragraph 1 LPFD. 

4.3.3  Implementation of the exception on occupational activities (Article 14(2) of Recast 

Directive 2006/54) 

As  an  exception,  different  treatment  is  allowed  by  reason  of  the  nature  of  a  particular 
occupation  or  activity,  or  of  the  conditions  under  which  it  is  performed,  when  gender 
characteristics  constitute an  essential and decisive occupational requirement, the aim is 
legitimate  and  the  requirement  does  not  go  beyond  what  is  necessary  for  its 
achievement.51  

More concrete and rigid exceptions are provided in cases of  differential treatment based 
on  religion,  faith  or  sex  in  occupational  activities  and  religious  education  or  training  at 
religious institutions or organisations52 (Article 7 paragraphs 3 and 4). The author is of the 
opinion that the detailed regulation of these exceptions goes beyond EU law and presents 
a risk of non-compliance  with the requirements for legality and proportionality, and the 
exceptions based on religious considerations in relation to sex cannot be a priori justified. 
The exceptions should be removed also in view of more recent EU case law.53 

As pointed out in Case Bounauoi and ADDH v Micropole SA, in accordance with Directive 
2000/78, it is only in very limited circumstances that a characteristic related, in particular, 
to religion may constitute a genuine and determining occupational requirement. 

4.3.4  Protection  against  the  non-hiring,  non-renewal  of  a  fixed-term  contract,  non-
continuation  of  a  contract  and  dismissal  of  women  connected  to  their  state  of 
pregnancy and/or maternity 

According to Article 12 paragraph 3 of the LPFD, the employer does not have the right to 
refuse  the  appointment  of  a  woman  for  reasons  of  pregnancy,  maternity  or  the  fact  of 
caring for a child. 

51   Article 7 paragraph 2 of the LPFD. 
52   Article 7 paragraphs 3 and 4. 
53   Ref. Case Achbita C-157/15 and Case Bounaoui C-188/15 of the CJ of the EU. 

34 

 
 
 
 
 
 
 
 
 
 
Under  Article  13  paragraph  3,  when  the  mother  who  is  on  pregnancy,  maternity  or 
childcare  leave  returns  to  work,  she  has  the  right  to  occupy  the  same  position  or  an 
equivalent one, and to get advantage of all improvements of the working conditions. 

Maximum protection is provided for a worker or employee who is on leave under Article 
163 LC: Leave for pregnancy, giving birth. According to Article 333 paragraph 6 LC, this 
category of workers may only be dismissed when the enterprise has to close down (Article 
328 paragraph 1). This most protected category also comprises the 15 days  of paternity 
leave. It does not include adoptive parents. Leave for adoption is regulated already in a 
special  section.  If  the  employee  is  made  redundant  during  her  maternity  leave  until  its 
end, she is entitled to maternity benefits up to 410 days, as guaranteed under Bulgarian 
legislation. 

According to Article 335 LC, the dismissal must be in writing and in  most cases  written 
notice  is  required  where  the  specific  grounds  are  substantiated.  The  sanction  for  not 
respecting this provision is that the dismissal will be declared illegal by the courts.  

4.3.5  Implementation  of  the  exception  on  the  protection  for  women  in  relation  to 

pregnancy and maternity (Article 28(1) of Recast Directive 2006/54) 

Article 7 paragraph 7 LPFD stipulates that the special protection for pregnant women and 
mothers  under  the  law  does  not  constitute  discrimination.  Also  within  this  category  are 
women at an advanced stage of in-vitro fertilisation. There is an exception to the exception, 
however: this protection does not apply  when  women in  such situations do not  want to 
avail  themselves  of  this  protection  and  they  have  informed  their  employer  thereof  in 
writing, accordingly.  

4.3.6  Particular difficulties 

The author mentioned some difficulties above about the risk of treating discrimination in 
the working conditions as a discrimination ground per se and broadening the competence 
of the Equality body for ruling on labour cases, regardless of the listed grounds in Article 
4 paragraph 1 of the LPFD. This interpretation as a separate ground of discrimination is 
attributed  to  discrimination  in  the  working  conditions  by  the  Commission  and  by  the 
administrative courts, while the Supreme Court of Cassation rejects this interpretation and 
requires a violation of a specific protected ground. 

4.3.7  Positive action measures (Article 3 of Recast Directive 2006/54)  

A  variety  of  positive  measures  of  a  general  nature  is  also  provided  for  in  Bulgarian 
legislation, as mentioned above in section 3.6 (Positive action). 

More concrete are opportunities for positive action in the sphere of work. Such concrete 
measures are provided as follows: 

Hiring  the  candidate  of  the  under-represented  sex  is  allowed  under  certain  conditions. 
Positive action measures are allowed in the process of hiring for positions in the state and 
local government administration. According to Article 39 of the LPFD, if the candidates for 
positions  in  the  State  central  and  local  administration  have  equivalent  qualifications  in 
relation to the requirements  for the position,  the candidate from the  under-represented 
sex  will  be  appointed,  except  when  there  are  specific  circumstances  for  appointing  the 
other  candidate.  This  is  also  valid  for  determining  the  members  of  consultative  and 
managerial and other bodies in this sphere, except when they are determined by elections 
or are subject to a competition/tender. 

Promotional measures may be taken for encouraging/promoting persons belonging to the 
less  represented  sex  (or  ethnic  group)  to  apply  for  a  certain  job  or  position  and  for 

35 

 
 
 
 
 
 
 
 
 
 
 
encouraging/promoting  the  vocational  development  and  participation  of  workers  and 
employees belonging to the less represented sex or ethnic group (Article 24 LPFD). 

4.4  Evaluation of implementation 

In  the  sphere  of  working  conditions  for  men  and  women,  Bulgarian  legislation  is  in  line 
with  EU  standards.  The  barriers  for  access  to  employment  in  most  spheres  have  been 
removed  by  law  but  implementation  in  practice  still  needs  improvement.  Some  barriers 
remain,  however  –  differential  treatment  based  on  religion,  faith  or  sex  in  occupational 
activities and religious education or training at religious institutions or organisations is still 
allowed  by  law  and  recognised  as  an  exception  to  discrimination  without  the  need  of 
particular scrutiny. 

4.5  Remaining issues 

It is important to further tackle the issue of interpretation of the scope of the protection 
from discrimination in the sphere  of work, the  contradictory definition  and expanding in 
practice of the right to equal conditions of work as a separate discrimination ground.  

36 

 
 
 
 
 
 
 
 
5 

Pregnancy,  maternity,  and  leave  related  to  work-life  balance  for  workers 
(Directive 92/85, relevant provisions of Directives 2006/54, 2010/18 and 
2019/1158)54 

5.1  General (legal) context 

5.1.1  Surveys and reports on the practical difficulties linked to work-life balance 

There are no important surveys on practical difficulties linked to work-life balance and the 
author  will  mention  some  data  and  considerations  from  the  most  recent  governmental 
reports. In the Draft report on the implementation of Gender Equality policy for 2018,55 it 
is  recognised  that  female  employment  is  lower  when  they  have  to  care  for  dependent 
members of their families. 

The coefficient of employment of women between 15 and 64 who care for at least one child 
under  the  age  of  7,  is  55.8  %  for  2018,  which  is  8.1  percentage  points  lower  than  the 
average employment coefficient of women from the same age group. In the report after 
May  2019  which  the  author  also  consulted,  the  numbers  are  even  more  startling.  The 
comparator is the average coefficient of employment for women in this age group  

According to the State report, the Bulgarian State policy for work-life balance is linked with 
services  for  childcare  or  care  for  other  dependent  family  members,  with  promotional 
measures for hiring unemployed women or women with small children, by including women 
in  continuous  training,  and  providing  for  flexible  forms  of  employment.  Legislative 
measures were taken in recent years as incentives for fathers to take leave for childcare 
and for women to return to work. Women are also encouraged to choose ‘male’ professions 
–  in  ICT,  for  example.  The  equalising  of  the  pensionable  age  of  men  and  women  is  in 
progress,  which  will  lead,  gradually,  to  more  equality  in  income  and  to  the  economic 
empowerment of women. 

5.1.2  Other issues 

The Ministry of Labour and Social Policy also mentions important policy measures to tackle 
the challenges: 

For example, the MLSP Operation ‘Parents and Employment’, financed by the ESF, is aimed 
at the work-life balance of parents with small children, combined with job opportunities for 
unemployed  people.  By  the  end  of  2018,  2977  applications  were  received  from  parents 
with small children and 653 were from parents whose applications were eligible under the 
programme.  1  060  applications  were  from  unemployed  persons  willing  to  take  care  of 
children up to 5 years old. The number of tri-partite contacts concluded (including with the 
MLSP)  were  1  431,  and  1  423  persons  who  were  unemployed  started  caring  for  small 
children. 

The other programme was the MLSP’s Operation ‘Active inclusion’. It is aimed at improving 
the quality of life of persons with disabilities, including children with disabilities, and their 
relatives,  and  aims  to  open  job  opportunities  both  for  persons  with  disabilities  and  for 
those caring for them.  By the end of 2018, about 300 persons who were carers  started 
searching for jobs or started working; 338 persons with disabilities started a new job; and 

54   See Masselot, A. (2018), Family leave: enforcement of the protection against dismissal and unfavourable 
treatment, European network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-
dismissal-and-unfavourable-treatment-pdf-962-kb and McColgan, A. (2015), Measures to address the 
challenges of work-life balance in the EU Member States, Iceland, Liechtenstein and Norway, European 
network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/3631-reconciliation. 

55   Unofficial Draft in process of preparation and approval. 

37 

 
 
 
 
 
 
 
 
 
 
1620 persons with disabilities received care and support through the programme.56 There 
is no data disaggregated by sex concerning beneficiaries.  

Although just based on programmes of the MLSP, these measures are of benefit to women 
who are the main carers for children and persons with disabilities, and have to be continued 
and broadened. Among their objectives, gender equality should be emphasised explicitly 
and result indicators should be disaggregated by sex. 

5.1.3  Overview of national acts on work-life balance issues 

The major national acts in this sphere are: 

- 
- 

The National Strategy on Gender Equality 2016-2020;57 
The National Plan on Equality between Women and Men 2019-2020.58 

Both documents contain as a priority area 1 – Increasing the participation of women in the 
labour market and equal level of economic independence where work-life balance for both 
sexes is one of the most important elements. 

- 
- 
- 

The Law on Protection from Discrimination; 
Labour Code; 
Code of Social Insurance. 

5.1.4  Political and societal debate and pending legislative proposals 

There is no political and societal debate or pending legislative proposals concerning work-
life balance in Bulgaria. 

5.2  Pregnancy and maternity protection 

5.2.1  Definition in national law 

Explicit  definitions  of  main  notions  related  to  pregnancy  and  giving  birth  have  been 
provided in joint Ordinance No. RD-07-4 of 15 June 2015 from the Minister of Labour and 
Social Policy and the Minister  of  Health: Ordinance for improving working conditions for 
pregnant women, women who have given birth or breastfeeding women.59 This ordinance 
was  meant  to  ensure  full  compliance  with  Directive  92/85.  Paragraph  1  p.  1  of  the 
Additional Provisions defines the notion of a pregnant worker as follows: 

‘1. "Pregnant worker" is a worker or employee with a confirmed status of pregnancy 
as  well  as  one  in  an  advanced  stage  of  in-vitro  treatment  within  the  meaning  of 
paragraph  1,  point  13  of  the  Additional  Provisions  of  the  LC  and  who  has  duly 
informed her employer about her status with a document issued by the competent 
health authorities.’ 

In this ordinance, the notions of a woman worker who has given birth and a breastfeeding 
worker are defined, as well.  

56   Unofficial draft of the Report on Gender Equality for 2018 – May 2019, MLSP 
57   National Strategy on Gender Equality 2016-2020, Национална стратегия за равнопоставеност на жените 

и мъжете, 
https://www.mlsp.government.bg/ckfinder/userfiles/files/Strategy_Gender%20Equality_2016(2).pdf. 

58   National Plan on Equality between Women and Men 2019-2020, Национален план за равнопоставеност на 

жените и мъжете 2019-2020, 
https://www.mlsp.government.bg/ckfinder/userfiles/files/Plan_Ravnopostavenost_2019-2020(2).pdf. 
59  Ordinance No. RD-07-4 of 15 June 2015 from the Minister of Labour and Social Policy and the Minister of 
Health: Ordinance for improving working conditions for pregnant women, women who have given birth or 
breastfeeding women, Наредба –РД-07-4 за подобряване на условията на труд на бременни работнички 
и на работнички родилки и кърмачки, Promulgated in S.G. 46/2015, Bulgarian text available at: 
https://www.lex.bg/bg/laws/ldoc/2136553201. 

38 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
‘“A female worker or employee who has given birth” is one who has returned to work 
prior to 90 days after having given birth and has informed her employer of her status 
with a document issued by the health authorities.’  

‘“A  breastfeeding  female  worker  or  employee”  is  one  who  breastfeeds  her  child 
herself and has informed her employer of her status with a document issued by the 
health authorities.’ 

It  can  be  noted  that  in  Bulgarian  legislation,  equal  protection  to  that  guaranteed  to 
pregnant  women  is  granted  to  female  workers  and  employees  who  are  at  an  advanced 
stage  of  in-vitro  fertilisation  treatment.  Their  rights  were  made  consistent  with  those 
of pregnant  female  workers  and  employees  and  with  those  who  are  breastfeeding. 
According to paragraph 1 p. 13 of the Additional Provisions of the Labour Code (LC) and 
to  p.  16  paragraph  1  of  the  Additional  Provisions  of  the  LPFD,  this  advanced  stage 
corresponds to the period up to 20 days from the aspiration of the ova until the transfer 
of the embryo.  

The definition of a pregnant worker is consistent with the requirements of the directive. 

5.2.2  Obligation to inform employer 

Notification of the employer by the pregnant woman is regulated in Article 313a of the LC 
as an obligation for the woman in order to avail herself of the rights of pregnant workers 
and employees provided for in the Labour Code. She has to present a relevant certificate 
issued by health authorities. In the case of termination of pregnancy, the worker/employee 
has to inform the employer within seven days. The employer and the respective officers in 
the enterprise have the obligation of confidentiality in relation to all these circumstances. 

5.2.3  Case law on the definition of a pregnant worker, a worker who has recently given 

birth and/or a worker who is breastfeeding 

There is no such relevant case law. 

5.2.4  Implementation of protective measures (Articles 4-6 of Directive 92/85) 

These protective measures are ensured in Bulgarian legislation.  

Articles 307 and 309 LC regulate this protection. The employer cannot compel a pregnant 
or  breastfeeding  woman,  or  a  woman  at  an  advanced  stage  of  in-vitro  fertilisation,  to 
perform work which entails a risk to their health or safety. The pregnant woman has the 
right to refuse to perform work which is defined as harmful to her health or for the health 
of  the  child  or  which,  as  a  result  of  a  risk  assessment,  is  defined  as  representing 
considerable harm to their health. The assessment is carried out, based on regulatory acts, 
such as an Ordinance by the Minister of Labour and Social Policy, issued jointly with the 
Minister  of  Health (No.  5 from 1999).60 The assessment is carried out by the employer, 
with the participation of units dealing with labour medicine, the bodies dealing with health 
and safety at work and other specialists in the enterprise.  The  employer can also invite 
other external experts and organisations. 

A list of the working activities and working conditions which pose a risk to the health and 
safety  of  pregnant  workers  is  provided  in  a  joint  Ordinance  from  the  Minister  of  Labour 
and  Social  Policy  and  the  Minister  of  Health.  This  is  currently  regulated  by  the  above-
mentioned Ordinance No. RD-07-4 of 15 June 2015 of the Minister of Labour and Social 
Policy  and  the  Minister  of  Health:  Ordinance  for  improving  the  working  conditions  for 

60   Ordinance № 5 from 1999 for the procedure, methodology and frequency of implementing risk assessment, 
Наредба за реда, начина и периодичността на извършване на оценка на риска, Promulgated in S.G. 
47/99. 

39 

 
 
 
 
 
 
 
 
 
 
 
 
pregnant women, women who have given birth or breastfeeding women. In this ordinance 
there  is  also  a  reference  to  the  above-mentioned  Ordinance  No.  5  of  1999  on  the 
procedure,  methodology  and  periodic  review  of  the  risk  assessment  for  the  health  and 
safety of pregnant workers, workers who have given birth or are breastfeeding. The issued 
ordinance from June 2015 contains non-exhaustive lists of the risk factors, work processes 
and working conditions for women of the protected categories.  

Under Bulgarian law, and according to Article  309 LC, the  employer is obliged to adjust 
any working conditions which are not suitable for pregnant or breastfeeding women or, if 
this is not technically and objectively possible, the employer has to transfer the worker to 
other suitable work. The provisions by the health authorities are obligatory  both for the 
pregnant  worker  and  for  the  employer  in  such  cases.  Until  the  adequate  adjustment  is 
made, the pregnant or breastfeeding worker is exempted from the obligation to perform 
the  unsuitable  work.  In  all  cases,  the  level  of  remuneration  received  prior  to  the 
adjustment for this category of workers should be maintained, and in the event of wage 
differences  after  the  adjustment,  the  worker  should  be  compensated  up  to  the  amount 
received prior to that. In addition to the Ordinance mentioned above, the Ordinance for an 
adjustment  to  the  workplace  for  pregnant  workers,  workers  who  have  given  birth  and 
breastfeeding workers is valid as well.61  

In addition, the LC provides for a standing obligation for the employer to define on a yearly 
basis,  in  conjunction  with  the  health  authorities,  the  working  positions  and  workplaces 
which  are  suitable  for  pregnant  workers,  workers  in  an  advanced  stage  of  in-vitro 
fertilisation treatment and breastfeeding workers.  

5.2.5  Case law on issues addressed in Articles 4 and 5 of Directive 92/85 

There is no substantial case law on issues addressed in the mentioned provisions. 

5.2.6  Prohibition of night work 

According to Article 140 paragraph 4  of the  LC, night work (from 10.00 p.m. until 6.00 
a.m.)  is  forbidden  for  pregnant  workers  and  workers  in  an  advanced  stage  of  in-vitro 
fertilisation treatment; this also applies to mothers with children up to six years old, and 
mothers  who  care  for  children  with  disabilities,  notwithstanding  their  age,  unless  their 
explicit  written  consent  is  given.  Fathers  are  not  protected  under  this  provision,  even  if 
they  are  sole  parents,  which  could  be  regarded  as  direct  sex  discrimination.  After  the 
changes in legislation concerning the different sorts of parental leave, there is either a gap 
in legislation, or omission due to economic considerations. 

The  possibility  for  a  transfer  to  daytime  work  or  leave  from  work,  or  an  extension  of 
maternity leave, is not explicitly provided for in such cases. However, it can be considered 
to be an implicit possibility, in view of the protection provided by the provisions mentioned 
above. The long maximum duration of maternity leave in Bulgaria can be added to this. 

5.2.7  Case law on the prohibition of night work 

There is no substantial case law on the prohibition of night work. 

5.2.8  Prohibition of dismissal  

The  provisions  on  the  conditions  for  the  dismissal  of  these  categories  of  workers  are  in 
compliance with the Directive.  

61   Ordinance for adjusting of the working conditions, adopted by Decree No. 72/86 of the Council of Ministers 
Наредба за трудоустрояването, S.G. 7/87, Bulgarian text available at: https://www.lex.bg/laws/ldoc/-
552857597. 

40 

 
 
 
 
 
 
 
 
 
 
 
 
 
The prohibition is not absolute. According to Article 333 paragraph 5 LC, a pregnant worker 
or a worker at an advanced stage of in-vitro fertilisation treatment may only be dismissed 
based on the grounds of Article 328, paragraph 1, pp. 1, 7, 8, 12 with previous notice, and 
without notice only based on Article 330 paragraph 1 and paragraph 2 p. 6 LC. In the latter 
case  (Article  330  paragraph  2  p.  6)  a  dismissal  will  only  be  possible  with  the  prior 
permission of the Labour Inspectorate. In the case of Article 328 LC, these hypothetical 
situations cover: the closing down of the enterprise, a refusal by the worker to follow the 
enterprise or its unit if it is moved to another location, when the position has to be vacated 
in favour of the return of an illegally dismissed worker or employee, and when there is an 
objective  impossibility  to  perform  the  duties  under  the  labour  contract.  Article  330 
paragraph 1 covers cases when the worker is  detained for the  enforcement of a verdict 
and paragraph 2 p. 6 LC covers a dismissal for a breach of discipline. 

Increased protection is provided in cases of the dismissal of a female worker or employee 
mother  of  a  child  up  to  three  years  of  age.  According  to  Article  333  paragraph  1,  a 
preliminary approval for each individual case is required before a dismissal under Article 
328 paragraph 1, pp. 2, 3, 5 and 11 and Article 330 paragraph 2 p. 6 LC. This covers the 
closing down of part of the enterprise or a reduction in personnel, a decrease in the volume 
of  work,  a  lack  of  qualities  and  skills  by  the  worker  or  employee  for  the  effective 
performance  of  the  work,  a  change  to  the  job  requirements  and  when  the  worker  or 
employee does not comply with them.  

This protection is not provided for fathers, even if they are sole parents. There is a separate 
ground, though, which provides the same level of protection from dismissal – for a worker 
or employee who started using the leave granted to him/her. It is not related directly to 
being a father of a small child. In the first months of maternity leave, it is understandable 
that the protection is for mothers. If then, after the first six months, the fathers  take the 
rest of the leave, they will be protected based on that ground. 

5.2.9  Redundancy and payment during maternity leave 

Maximum protection is provided for a worker or employee who is on leave under Article 
163 LC: for pregnancy, giving birth or adoption. According to Article 333 paragraph 6 LC, 
this  category  of  workers  may  only  be  dismissed  when  the  enterprise  has  to  close  down 
(Article 328 paragraph 1). If the employee is made redundant during her maternity leave 
until  its  end,  she  is  entitled  to  maternity  benefits  up  to  410  days,  as  guaranteed  under 
Bulgarian legislation. 

5.2.10 Employer’s obligation to substantiate a dismissal 

According to Article 335 LC, the dismissal must be in writing and in  most cases  written 
notice  is  required  where  the  specific  grounds  are  substantiated.  The  sanction  for  not 
respecting this provision is that the dismissal will be declared illegal by the courts. 

5.2.11 Case law on the protection against dismissal 

There is no case law related to protection against dismissal. 

5.3  Maternity leave 

5.3.1  Length 

Female employees are entitled to pregnancy and maternity leave for 410 days for each 
child, 45 days of which must be used before the birth (Article 163 paragraph 1 LC). 

Therefore, Bulgarian legislation goes beyond the minimum requirements of EU law. 

41 

 
 
 
 
 
 
 
 
 
 
 
 
 
5.3.2  Obligatory maternity leave 

There is a period of 45 days which must be used before giving birth (Article 163 LC). 

The maternity leave after giving birth is formulated as a right of the working mother (Article 
163 paragraph 1 LC).  

It is noted that according to Article 7 paragraph 1 p. 7, the special protection for pregnant 
women and mothers which is established by law does not constitute discrimination, except 
in cases where they do not want to benefit from this protection and they have notified the 
employer of this in writing. 

5.3.3  Legal protection of employment rights (Articles 5, 6 and 7 of Directive 92/85) 

Legal protection of employment rights is ensured. 

5.3.4  Legal protection of rights ensuing from the employment contract  

Employment rights are ensured during maternity leave. 

5.3.5  Level of pay or allowance  

The  maternity  benefits  during  pregnancy  and  maternity  leave  amount  to  90 %  of  the 
average  remuneration  or  the  average  insurance  income  based  on  which  the  worker  or 
employee  contributed  to  social  security  –  or  for  the  self-insuring  persons,  based  on  the 
contributions made for common illness and maternity for the previous 24 months (Article 
49 of the Code of Social Insurance – COSI). It is equivalent to the maximum pay for sick 
leave. There is no fixed limit of the amount. 

5.3.6  Additional statutory maternity benefits  

There  are  not  publicly  known  cases  of  employers  supplementing  statutory  maternity 
benefits but it is not excluded by law and in practice. 

5.3.7  Conditions for eligibility (Article 11(4) of Directive 92/85) 

According to Article 48a of COSI, the principle is that persons under a labour contract who 
are insured for common illness and maternity have the right to maternity benefits if they 
have 12 months of insurance contributions for this risk.  

5.3.8  Right to return to the same or an equivalent job (Article 15 of Directive 2006/54) 

According to Articles 13 and 15 of the LPFD, a woman on maternity leave shall be entitled, 
at the end of her maternity leave, to return to her job or to an equivalent position under 
terms  which  are  no  less  favourable  to  her  and  to  benefit  from  any  improvement  in  the 
working  conditions.  These  rights  are  also  granted  to  women  on  childcare  leave.  The 
father / adoptive father can also benefit from these rights upon his return from leave for 
raising a child. Those persons also have the right to be trained with regard to technological 
changes  related  to  their  job  which  have  taken  place  in  their  absence.  Thus  they  will  be 
ensured the required professional qualification. 

5.3.9  Legal right to share maternity leave 

There is a legal right to share part of maternity leave in Bulgaria. 

As mentioned above, female employees are entitled to pregnancy and childbirth leave for 
410 days for each child, 45 days of which must be used before the birth (Article 163 LC). 

42 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
With the consent of the mother, after the child is six months old, the father may use the 
remaining paid leave of up to 410 days, and the paid leave of the mother is interrupted. 
‘Interrupted’ is the term used – the father may not use the full remaining leave but step 
into part of it, for example. For the time of this leave, the respective parent employee shall 
be paid cash compensation under the terms of and subject to the amounts specified in the 
Social Insurance Code.  

Separate from this, since 2009, if the parents are married or live together in cohabitation, 
the father is entitled to 15 days of paid paternity leave upon the birth of his child, after 
the child is brought home from the hospital (Article 163 LC). In all cases, fathers have the 
same social insurance rights for this paternity leave, also when they replace the mother 
after the child is six months old (this is applicable in all cases after the child reaches the 
age of six months). In addition, if the father is unknown, this leave can be shared with one 
of the mother’s parents. If the father has passed away, the leave can be used by one of 
the parents of both mother and father. 

There are no explicit provisions allowing the choice of the mother or father to take over 
maternity, paternity and/or parental leave on a part-time or full-time basis. The size of the 
employer is irrelevant when it comes to the rules on and the models of sharing maternity 
and childcare leave.  

Besides the legal possibility to share part of maternity leave, after the leave for pregnancy, 
childbirth or adoption has been used, if the child is not placed in a childcare establishment, 
the mother, regardless of the number of children, is entitled to additional leave to raise 
her child – the above- mentioned childcare leave – until the child reaches the age of two 
(Article 164 paragraph 1 of the LC). With the consent of the mother, this leave shall be 
granted  to  the  father  or  to  one  of  their  parents  if  the  grandparents  work  under  an 
employment contract.  During this leave, the  mother,  or the person  who has taken over 
the raising of the child, is entitled to maternity benefits under the terms of and subject to 
the  amounts  specified  in  the  Law  on  the  Budget  of  the  State  Social  Insurance  Scheme. 
This  solution,  which  is  typical  for  Bulgarian  legislation,  is  not  fully  in  line  with  equality 
principles – firstly, the consent of the mother is also needed for this leave, and secondly, 
given  the  opportunities  given  to  the  grandparents,  and  usually  to  the  grandmothers, 
mainly the latter and the mothers  will take this leave.  This is the leave that used to be 
called childcare leave.  

In the same section of pregnancy and maternity leave (Article 163 LC), extended rights 
and opportunities have also been regulated for children and parents where small children 
are placed as a protective measure. These solutions have been extended to mothers and 
their  husbands  within  whose  families  children  have  been  placed  as  a  measure  of  child 
protection  under  the  Law  on  Child  Protection.  A  female  worker  or  employee  within  the 
family  where  a  child  has  been  placed  as  a  protective  measure  under  the  Law  on  Child 
Protection (a family consisting of close relatives or having close connections or in a foster 
family) has the right to leave which is the same as maternity leave (410 days) from the 
placement of the child onwards. In this case, the female worker or employee has the right 
to maternity leave as mothers at birth. Therefore, there is no discrimination as it is the 
mother’s leave.  This means that  when the  child is placed in a family, usually at her/his 
early age, the woman in this family will take the leave first, on equal terms to the mother 
of the child. Since these are not the real mother and father of the child, the author does 
not think there is discrimination based on sex – it is not a question of gender equality in 
childcare. Moreover, the first part of the leave – the first six months – are maternity leave 
and it is normal that it goes to a woman who will take care of the child at this early stage. 
There is very low probability that a very small child will be placed in the care of a man as 
a sole foster parent or relative. 

43 

 
 
 
 
 
When a child has been placed within a family as a protective measure, with the consent of 
the woman, her husband can benefit from the remainder of the leave after the child has 
reached the age of six months (for up to 410 days, as mentioned above).  

These provisions have been in force since 1 July 2018. 

When the child is placed in a family, the persons with whom the child was placed have the 
right to additional childcare leave up to two years of the child. Only one of the spouses has 
the right to this leave. (Article 164a LC). 

5.3.10 Case law 

There is no substantial case law on these issues. 

5.4  Adoption leave 

5.4.1  Existence of adoption leave in national law 

Recent provisions in the Labour Code in Article 164b  LC62 have  consolidated the  special 
provisions related to the leave of adoptive parents, the most recent changes in force since 
1 July 2018. The special section is entitled ‘Leave for adopting a child up to five years’. 

An  adoptive  mother  of  a  child  up  to  five  years  old  has  right  to  leave  of  365  days  from 
taking  the  child  but  no  later  than  the  child  reaching  the  age  of  five  years.  When  the 
adoptive parents are married and the mother works under a labour contract, she can agree 
for the adoptive father to take the leave after the first six months. If the parent is deceased, 
the leave can be taken by either parent of the mother or father. When the female worker 
or employee is the sole adoptive parent of a child and works on a labour contract, after 
the six months from adoption of the child, her parents can step into the adoption leave 
until  its  expiry.  In  the  mentioned  cases,  the  leave  of  the  mother  is  interrupted.  The 
adoptive  father,  when  he  is  the  sole  adoptive  parent,  has  the  same  rights  as  the  sole 
adoptive mother. Wherever there are rights to leave for the fathers, it is mentioned in the 
specific section. If this is not mentioned, it means that there are no separate issues in that 
respect. 

Adoptive parents, or the other relative having a right to parental leave, have the right to 
additional leave for caring for a child up to her/his age of two years. 

When  the  adoptive  mother  and  father  are  married  or  if  they  cohabit,  in  cases  of  a  full 
adoption, the adoptive father of a child under five years of age has the right to 15 days of 
paternity leave for adoption from the actual day of the adoption onwards until the child 
reaches the age of 5 years. 

In all cases of the use of these forms of leave, the leave periods are recognised for seniority 
(length  of  service)  purposes  and  compensation  is  paid  according  to  the  Code  for  Social 
Insurance  under  the  same  conditions  as  the  compensation  that  the  biological  parents 
would be entitled to. 

Therefore, Bulgarian legislation provides special protection for adoptive parents, especially 
with the extension of their rights also according to the latest amendments mentioned which 
have been in force since 1 July 2018. It puts the legislation in further compliance with EU 
directives related to the work-life balance. 

62   Labour Code at: https://lex.bg/bg/laws/ldoc/1594373121, amended with S.G. 30/2018. 

44 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.4.2  Protection against dismissal (Article 16 of Directive 2006/54) 

Adoptive parents have  the same  rights as persons  on childcare leave  when they are  on 
leave according to Article 164b LC. Upon return to work, they have the right to occupy the 
same or another equivalent position and to benefit from the improvement of the working 
conditions.  

The adopting mothers of children up to three years of age who are on childcare leave have 
the right to increased protection against dismissal.  

5.4.3  Case law 

There is no relevant case law on sex discrimination in this field. 

5.5  Parental leave 

5.5.1  Implementation of Directive 2010/18 

The compliance of Bulgarian legislation with Directive 2010/18 was achieved in its main 
part prior to the adoption of the Directive and within the expiry of the transposition period. 
Harmonisation was made possible mainly through amendments to the Labour Code (LC), 
and also to the Law on Protection from Discrimination (LPFD). Unpaid leave for raising a 
child until he/she reaches eight years of age was introduced in 2004 and is regulated in 
Article 167a LC. After having used the leave for raising a child up to the age of two, and 
the adoption leave under Article 164b, any of the parents (adopters) – if they work under 
a  labour  contract,  and  if  the  child  has  not  been  placed  in  an  institution  with  full  public 
support  –  upon  request,  shall  have  the  right  to  make  use  of  unpaid  leave  of  up  to  six 
months to take care of a child until he/she reaches eight years of age. Each of the parents 
(adoptive parents) can  make use of up to five  months of the leave of  the other parent, 
upon his/her consent, so most of the leave is transferable. The legislation is in compliance 
with the minimum standards set by the Directive.  

5.5.2  Applicability to public and private sectors (Clause 1 of Directive 2010/18) 

There is no difference provided by law in the duration of parental leave in the public and 
the private sectors. By the end of 2016, there was a limitation to the right of the men in 
the armed forces to unpaid parental leave, introduced with Article 203 paragraph 2 of the 
Law on Defence and Armed Forces. The leave was limited to cases where a male officer 
was the sole parent taking care of a child. The situation was changed with the amendment 
of  the  law  with  S.G.  No.  58/2017  and  granting  the  full  right  to  parental  leave  to  men 
employed in the armed forces under the terms and conditions of Article 167a LC. 

5.5.3  Scope of the transposing legislation 

The only requirement for the applicability of parental leave is the availability of a labour 
contract under the Labour Code. 

5.5.4  Length of parental leave 

The duration of the leave is six months for each parent, if used individually, and there is 
no difference between the two sectors. Up to five months of the leave of each parent can 
be transferred to the other. 

5.5.5  Age limits 

The parental leave can be used by the parents until the child reaches eight years of age. 

45 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.5.6  Individual nature of the right to parental leave  

This is an individual right of each of the parents in principle.  

5.5.7  Transferability of the right to parental leave  

Up  to  five  months  of  the  parental  leave  can  be  transferred  to  the  other  parent  upon 
consent.  The  transferring  parent  reserves  his/her  right  to  at  least  one  month  of  the 
parental leave. 

5.5.8  Form of parental leave 

The unpaid leave for raising a child up to the age of eight years can be used in parts, the 
minimum being five days. The law does not require a regular sequence in using the leave, 
i.e. each parent decides when to use the right to parental leave. The person who would 
like to benefit from the leave has to notify the employer 10 days in advance of the planned 
leave. The leave is regulated as a right of the respective parent and has to be granted by 
the employer upon receiving notice thereof. 

There is no specific form required for taking and using the parental leave. 

5.5.9  Work and/or length of service requirements (Clause 3(b) of Directive 2010/18) 

There are no work and/or length of service requirements for the parents in order to take 
the leave.  

5.5.10 Notice period 

The notice period to the employer is 10 days in advance. 

5.5.11 Postponement of parental leave (Clause 3(c) of Directive 2010/18) 

There  is  no  legal  provision  allowing  the  employer  to  postpone  the  granting  of  parental 
leave for justifiable reasons related to the operation of the enterprise. 

5.5.12 Special arrangements for small firms (Clause 3(d) of Directive 2010/18) 

There are no special arrangements for small firms provided in the law. 

5.5.13 Special rules and exceptional conditions for parents of children with a disability or 

long-term illness (Clause 3(3) of Directive 2010/18) 

There are no special rules and exceptions for parents of children with a disability or long- 
term illness. Their rights are not regulated as an exception to the rules concerning parental 
leave. 

5.5.14 Measures addressing the specific needs of adoptive parents (Clause 4 of Directive 

2010/18) 

Adoptive parents are specifically included and have the rights to parental leave upon expiry 
of their rights to childcare leave – the paid leave until the age of two years of the child, as 
explained above. 

46 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.5.15 Provisions  protecting  workers  against  less  favourable  treatment  or  dismissal 

(Clause 5(4) of Directive 2010/18) 

Workers and employees are protected against less favourable treatment and dismissal in 
relation  to  an  application  for  or  the  taking  of  parental  leave  through  the  general  anti-
discrimination  provisions  of  the  Labour  Code  (Article  8)  and  the  LPFD  (Article  4)  which 
introduce a prohibition on less favourable treatment, among other grounds, on the ground 
of family status. 

5.5.16 Right to return to the same or an equivalent job (Clause 5(1) of Directive 2010/18) 

Women  on  maternity  and  childcare  leave  as  well  as  fathers  on  paternity  and  childcare 
leave are explicitly recognised as having the right to return to their job or to an equivalent 
position and to benefit from improvements in working conditions (Articles 13 and 15 of the 
LPFD). It is not explicitly provided for cases of parental leave – which is unpaid and after 
the childcare paid leave – but the author considers parental leave is also leave for caring 
for the child, although it is an opportunity for unpaid leave after the child is two years old. 
Therefore, according to the author, this clause is valid also for parental leave. 

In  view  of  the  full  compliance  with  Directive  2010/18/EU,  a  new  Article  167b  has  been 
introduced.63 It provides for the rights of persons returning from leave under Articles 163- 
167a LC, or interrupting such leave, including parental leave under the Directive. They can 
negotiate with their employer on the length and division of their working time, as well as 
other conditions under the labour contract, in view of facilitating their return to work. The 
employer  has  to  take  into  account  the  suggestions  of  those  returning,  if  they  can  be 
accommodated. The law also provides for the possibility of negotiations and changes to 
the employment conditions during the period of leave. 

Even if the employer is obliged to consider the request of the worker/employee, the final 
arrangements are subject to negotiations and agreement. Based on that, it is also logical 
to conclude that returning to prior working arrangements is also a question of negotiations 
between the worker and the employer. 

5.5.17 Maintenance of rights acquired or in the process of being acquired by the worker 

(Clause 5(2) of Directive 2010/18) 

Maintenance  of the rights acquired is  secured in principle.  There is no specific provision 
stating  that  but  the  fact  mentioned  above  that  the  person  can  return  to  the  same  or 
equivalent job is a guarantee. 

5.5.18 Status of the employment contract or relationship during parental leave 

As mentioned above, the status of the employment contract is maintained in principle. 

5.5.19 Continuity of entitlement to social security benefits 

There is continuity of entitlement to social security benefits, including healthcare. 

5.5.20 Remuneration 

Parental leave is unpaid leave under Bulgarian law. 

5.5.21 Social security allowance 

There is no social security allowance during parental leave. 

63  S.G. No. 7/2012. 

47 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.5.22 More favourable provisions (Clause 8 of Directive 2010/18) 

In the author’s opinion, the minimum standards of the Directive have been formally met. 
The problem is that the existing regulation of the parental leave which is understood as 
unpaid leave for raising a child until he/she reaches eight years of age, as well as other 
related  leave  for  raising  a  child,  are  still  used  predominantly  by  mothers,  which  is  a 
substantive equality problem and an uneven balance in family and professional life for both 
parents.  

The various forms of paid leave for both parents for raising a child until he/she reaches 
two years of age have more favourable provisions in Bulgarian law. The fact that the unpaid 
leave for raising a child between two and eight years of age is six months for each parent 
is also more favourable, compared to the minimum required of four months. 

5.5.23 Case law  

There is no relevant case law. 

5.6  Paternity leave 

5.6.1  Existence of paternity leave in national law 

Since 2009, if the parents are married or live together in cohabitation, the father is entitled 
to 15 days of paid paternal leave upon the birth of his child after the child is brought home 
from the hospital (Article 163 LC). Fathers have the same social insurance rights as the 
mother (90 % of the average remuneration) for this paternity leave and also when they 
replace the mother after the child is six months old. 

As mentioned above, paternity leave is granted also to adoptive fathers. 

5.6.2  Protection against unfavourable treatment and/or dismissal (Article 16 of Directive 

2006/54) 

As mentioned above, according to Article 13 paragraph 3 of the LPFD, women on maternity 
and  childcare  leave,  as  well  as  fathers  on  paternity  and  childcare  leave,  are  explicitly 
recognised as having the right to return to their job or to an equivalent post and to benefit 
from improvements in working conditions. Persons on leave under Article 163 also benefit 
from  maximum  protection  against  dismissal  under  Article  333  paragraph  6  LC.  These 
persons can be fired only upon notification and in cases of closing down of the enterprise. 

The general protection against discriminatory treatment based on family status under the 
LPFD is valid as well.  

5.6.3  Case law 

There is no relevant case law. 

5.7  Time off for force majeure 

5.7.1  Time off for force majeure 

Paid leave for other urgent family reasons is regulated in Article 157 paragraph 1 p. 3 of 
the Labour Code – in the event of the death of a parent, child, spouse, sibling, or parent 
of the other spouse or other direct-line relatives. The leave is up to two working days and 
the payment during this period is based on that agreed in the collective agreement or by 
agreement between the employer and the employee. 

48 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Outside these provisions, the employee has the right to unpaid leave under Article 160 of 
the LC  for up to 30 working days per year.  This leave  can be claimed by the worker  or 
employee and may be granted by the employer. It is granted regardless of whether or not 
the employee has used his/her paid leave and does not depend on the length of service. 
The period of the unpaid leave is recognised as part of the length of service. The unpaid 
leave under Article 160 LC can be used for time off for force majeure. 

For all the mentioned types of leave, there are no other requirements or conditions for  
granting the leave. 

5.7.2  Case law 

There is no relevant case law on the issue. 

5.8  Care leave 

5.8.1  Existence of care (or carers’) leave in national law  

There is a possibility for such leave in Bulgarian law and this is regulated along with sick 
leave and some hypothetical leave for force majeure as mentioned in 5.7.1 above. 

According to Article 162 LC, the worker or employee has the right to leave as a result of a 
temporary inability to work due to general sickness but also due to the sickness of a child 
or another close relative or spouse, and due to medical examinations or other urgent family 
reasons  related  to  a  medical  emergency.  For  this  period  the  worker  is  entitled  to  social 
security benefits which amount to up to 70 % of his/her average remuneration during the 
first three days which are paid by the employer and to up to 80 % for the rest of the leave. 
The length of this type of leave is unlimited for urgent medical reasons when they pertain 
to a child, is limited to 60 calendar days in a calendar year for taking care of a sick child, 
and may be up to 10 calendar days in one year for taking care of an adult relative. The 
detailed regulation is provided in Articles 40-45 of the Code on Social Insurance (COSI).  

Outside these opportunities, the above-mentioned possibility for unpaid leave under Article 
160 LC is available for the purpose of care for family members. It is subject to consent by 
the employer. 

There are no other requirements or conditions for granting the leave. 

5.8.2  Case law  

There is no case law relevant to the issue. 

5.9  Leave in relation to surrogacy 

Surrogacy is illegal in Bulgaria and no right to leave is recognised in relation to that. 

5.10 Flexible working time arrangements 

5.10.1 Right to reduce or extend working time 

Only  the  employer  has  the  initiative  to  reduce  or  extend  working  time.  According  to 
Articles 136-139  LC,  the  employer  can  issue  written  orders  for  extending  working  time, 
where  there  is  a  need  for  the  productivity  of  the  enterprise.  It  can  be  done  upon 
consultations with respective trade unions and the extensions have to be according to the 
law and have to be compensated by reducing the working time during other periods. 

49 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The  workers  have  no  formal  legal  right  to  reduce  or  extend  the  working  time  on  their 
request. 

5.10.2 Right to adjust working time patterns 

Adjustment of working time patterns can be negotiated with the employers, but only upon 
their initiative. There is no formal right for the workers to adjust the working time patterns. 

Only in the case of Article 167b LC, the employer has to take into account the suggestions 
of those returning, if they can be accommodated. The law also provides for the possibility 
of negotiations and changes to the employment conditions during the period of leave. This 
solution is only in the case of this leave and only when returning. It does not affect the 
general rule that flexible arrangements are not common and are also upon the employer’s 
initiative. Even in the event of returning from parental leave, flexible arrangements are up 
to the employer and there may be obstacles even in this case. 

Bulgarian law provides for part-time work arrangements. According to Article 138 of the 
Labour  Code,  the  parties  to  a  labour  contract  can  agree  on  work  for  part  of  the  legally 
defined  working  time / part-time  work.  In  such  cases  they  define  the  duration  and  the 
distribution of the working time. 

Amendments to the Labour Code64 introduced additional possibilities for flexible working 
arrangements. The arrangements can be introduced in companies where the way in which 
the  work  is  organised  allows  the  establishment  of  variations  of  the  working  time 
arrangements.  Under  the  principle  set  down  in  Article  139(2)  of  the  Labour  Code,  the 
obligatory period during the day when the employee has to be at work and the means of 
its calculation are defined by the employer. A new paragraph 3 of Article 139 sets cases 
when  flexible  working  time  arrangements  can  be  applicable.  When  established  by  the 
employer,  the  worker  or  employee  can  negotiate  to  complement  her/his  working  hours 
during the next day or on other days of the working week. The calculation of the working 
time is done based on the internal rules of the company.  

The aim of the LC amendments was to achieve more flexibility in favour of the worker and 
the establishment of a more liberal regime for adjusting working time and for opportunities 
for reconciliation of work and family life. The author notes that the workers or employees 
can benefit from such arrangements only upon the initiative of the employer in establishing 
flexible  working  time  and  outside  the  obligatory  working  periods  established  by  the 
employer. In other words, the initiative is with the employer  – the employee cannot ask 
for such general flexible arrangements.  

Other individual flexible working arrangements are left to concrete agreements reached in 
the  labour  contract  between  the  worker  and  the  employer.  Opportunities  which  are 
guaranteed by the law for such arrangements are provided also in Article 167b LC which 
was adopted in view of reaching full compliance with Directive 2010/18/EU. It provides for 
the rights of persons returning from leave under Articles 163-167a LC: maternity leave, 
paternal  leave,  leave  for  caring  for  a  child  up  to  his/her  second  birthday,  leave  for 
breastfeeding and parental leave. They can negotiate with their employer over the length 
and organisation of their working time, as well as other conditions of the labour contract, 
in  view  of  facilitating  their  return  to  work.  The  employer  has  to  take  into  account  the 
suggestions of the returning parent, if they can be accommodated. The law also provides 
for the possibility for negotiations and changes to the employment conditions under the 
employment contract also in the course of any of the types of leave regulated under Articles 
163-167 LC. 

The author notes that the size of the employer is not a qualifying condition for part-time 
and flexible working time arrangements provided by law. There are no provisions explicitly 

64  Promulgated by State Gazette No. 54/2015 from 17 July 2015 https://www.lex.bg/laws/ldoc/1594373121. 

50 

 
 
 
 
 
 
 
 
 
allowing maternity leave or parental leave to be taken in the form of part-time working. 
Adopting part-time working arrangements as mentioned above is subject to the conditions 
under the labour contract. Concerning the other forms of flexible working arrangements 
which  have  been  mentioned,  the  employer  is  obliged  to  consider  the  request  of  the 
worker/employee and the final arrangements are subject to negotiations and agreement. 
Based on that, it is also logical to conclude that returning to prior working arrangements 
is  also  a  question  of  negotiations  between  the  worker  and  the  employer.  There  are  no 
measures specifically aimed at encouraging men to make use of the legal rights for sharing 
parental responsibilities. 

5.10.3 Right to work from home or remotely  

There is a right to work from home, based on the contract with the employer. The answer 
is the same as the previous two answers. It can only be achieved on a contractual basis. 

As  a  matter  of  fact,  the  Labour  Code  allows  for  arrangements  to  work  from  home  or 
remotely as a result of the definition of the notion of ‘employer’ in the Additional Provisions 
of the Labour Code, paragraph 1.1: the term ‘employer’ is associated with any physical or 
legal person, or its branches, or any other unit which is autonomous from an organisational 
and economic point of view, and who/which hires workers and employees independently 
under a labour contract, including home workers or workers for distance working, as well 
as in cases  of  sending  a worker  or  employee  for temporary work to another  enterprise, 
called the beneficiary. 

Working from home and remotely is also regulated in detail in specific sections of the LC 
dedicated to this type of agreement between the parties under the labour contract and the 
respective arrangements. 

There are no legal limitations as to the size or type of the employer. There are no positive 
measures aimed at encouraging specifically men to work from home or remotely. 

Thus the regulation of flexible working agreements is left to a great extent to negotiations 
between the parties and the individual employment contract. 

5.10.4 Other legal rights to flexible working arrangements 

There are no other explicitly recognised legal rights to flexible working arrangements, such 
as  arrangements  by  which  workers  can  ‘bank’  hours  to  take  time  off  in  the  future. 
Nevertheless,  based  on  the  above  mentioned  amendments  in  the  direction  of  more 
flexibility such models might also be possible. 

5.10.5 Case law  

There is no relevant case law under this section. 

5.11 Evaluation of implementation 

Thus the regulation of flexible working agreements is left to a great extent to negotiations 
between  the  parties  and  the  individual  employment  contract.  The  system  relies  on  the 
traditional leading role of the mothers in childcare; incentives for fathers can be introduced 
but there are no clear instances and cases of discrimination of men as fathers. There should 
be more incentives, such as having more flexibility to combine a possible longer period of 
parental leave with some working arrangements during the leave itself. Parental leave for 
both parents simultaneously could be provided for some periods, etc. 

51 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.12 Remaining issues 

There are no other remaining issues. 

52 

 
 
 
6 

Occupational social security schemes (Chapter 2 of Directive 2006/54) 

6.1  General (legal) context 

6.1.1  Surveys  and  reports  on  the  practical  difficulties  linked  to  occupational  and/or 

statutory social security issues 

There are no surveys and reports on this issue. 

6.1.2  Other issues related to gender equality and social security 

Since  the  year  2000,  the  pension  system  in  Bulgaria  has  consisted  of  three  pillars.  The 
model was based on the World Bank’s advice and influence and is different from the pillars 
in the EU countries. The first pillar is the universal social security fund, a ‘pay-as-you-go’ 
type,  which  is  obligatory  for  persons  in  an  employment  relationship  or  self-employed 
persons.  The  second  pillar  is  a  mandatory  and  fully-funded  pension  fund  with  defined 
contributions which are allotted to individual accounts run by licensed pension insurance 
companies  or,  based  on  the  choice  of  the  insured  person,  it  is  contributed  to  the  state 
Pension fund. The third pillar includes supplementary voluntary pension schemes. 

In  Bulgaria  there  are  no  second  pillar  pension  schemes  comparable  to  the  type  of 
occupational pension  schemes recognised in EU law. Provisions for the establishment  of 
occupational pension schemes are contained in the Code for Social Insurance within the 
third pillar as part of Additional Voluntary Social Insurance (Part III of the COSI). These 
schemes are not yet well developed in Bulgaria. 

6.1.3  Political and societal debate and pending legislative proposals 

There are no pending proposals for legislation or societal debate on the specific issue. 

6.2  Direct and indirect discrimination 

Direct and indirect discrimination based on sex is forbidden, first in acceptance of persons 
into the schemes and also in the process of insurance under such schemes. Namely, no 
discrimination based on sex, including discrimination based on marital and family status, 
is allowed within the scope of application of the schemes and the conditions for accessing 
them;  the  obligation  to  pay  contributions  and  the  calculation  thereof;  the  calculation  of 
retirement payments and other terms of the related rights. 

6.3  Personal scope 

Since  the  new  schemes  are  part  of  the  third  pillar  in  Bulgaria  the  occupational  social 
security  directive  is  not  applicable  to  them.  Nevertheless,  it  can  be  said  that  additional 
voluntary pension insurance is open to all physical persons aged 16 and over (Article 210 
COSI). In Bulgarian legislation, there are no occupational social security schemes which 
form part of a second pillar of social security, as in other EU Member States. The situation 
in  Bulgaria  and  other  new  Member  States  has  been  explained  in  reports  within  the 
framework of the Network.65 

6.4  Material scope 

Despite the fact that compliance cannot be sought, it is worth mentioning that voluntary 
insurance under the professional schemes of enterprises which are the insurers gives the 
right  to  a  fixed-term  pension,  an  ad  hoc  or  postponed  payment  of  the  accumulated 

65  Renga, S., Molnar-Hidassy, D., Tisheva, G. (2010), Direct and Indirect Gender Discrimination in Old-Age 

Pensions in 33 European Countries, The European Network of Legal Experts in the field of Gender Equality, 
http://www.equalitylaw.eu/downloads/2810-discrimination-old-age-pensions. 

53 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
amounts  under  the  individual  account,  or  an  ad  hoc  or  postponed  payment  of  the 
accumulated amounts to the successors of a deceased insured person or of a retired person 
(Article 212 COSI). 

6.5  Exclusions 

The provisions are not applicable. 

6.6  Laws  and  case  law  falling  under  the  examples  of  sex  discrimination 

mentioned in Article 9 of Directive 2006/54 

There are no  relevant laws  or case law falling  under these  examples  as the schemes in 
Bulgaria are not of the type provided under EU law and they have not been well developed 
in practice. 

6.7  Actuarial factors 

Sex is not used as an actuarial factor and no exceptions to the principle are acceptable. 

6.8  Difficulties 

The differences and difficulties were explained above so there is no case law relevant to 
occupational social security schemes according to the Directive.  

6.9  Evaluation of implementation 

The  pension  system  in  Bulgaria  does  not  correspond  to  the  EU  model,  and  more 
specifically, the second pillar of the type of occupational social security schemes as they 
exist  in  the  old  Member  States  are  not  known  for  our  system.  The  system  cannot  be 
changed and will develop further in expanding models of occupational schemes, in third 
and fourth pillars, instead.  

6.10 Remaining issues 

There are no specific remaining issues. 

54 

 
 
 
 
 
 
 
 
 
 
 
 
 
7 

Statutory schemes of social security (Directive 79/7) 

7.1  General (legal) context 

7.1.1  Surveys and reports on the practical difficulties linked to statutory schemes of social 

security (Directive 79/7) 

There are no such specific reports on the issue in question. 

Here is some data from surveys including comparisons with the EU. For example, indicative 
of the level of stereotyping in Bulgaria are the results from a 2017 Eurobarometer survey 
showing that in Bulgaria, 81 % of men are of the opinion that women should stay at home 
rather than go to work. At the other extreme are Swedes, with only 11 % of Swedish men 
of this opinion.66 

According to data from agency Infograf, from 2017, Bulgaria ranks second last in Europe 
in  relation  to  labour  longevity,  based  on  data  for  2015.67  This  figure  was  32.1  years. 
Nevertheless,  the  difference  between  women  and  men  is  only  2.6  years  and  there  is  a 
tendency towards further closing of this gap.  

There  are  analyses  focusing  on  the  problems  of  women  who  are  retired  because  of  the 
lower income and the higher  risk  of poverty.  There are  researchers with interest in this 
issue due to the low level of commentaries on these aspects of gender inequality and the 
increasing  poverty  among  retired  women.  The  most  interesting  intersection  between 
poverty  and  the  health  status  of  women  has  to  be  explored,  as  there  is  a  total  lack  of 
political sensitivity on the issue, and due to the social-economic environment itself, which 
is a condition for the reproducing of the problem at a higher scale.68  

7.1.2  Other relevant issues  

Here, the author mentions again the impact of the GPG on the pension gap, as illustrated 
in the publication of the National Statistical Institute, ‘Men and women in Bulgaria 2018’. 69 
The differences in pensions between the two sexes were mentioned above in the Equal pay 
section. Women prevail in the segments of the lower pensions and vice versa – men prevail 
in the higher pensions’ levels and the maximum amount.  

During  the  whole  observed  period,  the  risk  of  poverty  for  retired  women  is  higher  than 
that for men. In 2017, the relative ratio of poor women is higher than poor retired men, 
by 14.9 percent points.  

As  a  matter  of  fact,  periods  that  are  most  related  to  women  as  carers  are  counted  as 
ensured  periods  for  seniority  but  are  not  taken  into  account  for  defining  the  insurance 
income: 

- 

- 
- 

- 

the periods of leave for pregnancy and maternity, adoption leave from the child’s age 
of two to five years, the paid and unpaid parental leave, unpaid leave from work; 
the periods of counted seniority for non-working mothers;  
the periods when a parent or adoptive parent has taken permanent care of his/her 
disabled child until 16 years of age, and due to that has not worked under labour or 
civil servants’ contracts and was not insured; 
the  periods  when  a  parent  (adoptive  parent)  of  a  disabled  person  or  one  of  the 
parents  of  the  mentioned  parent  (adoptive  parent)  of  such  a  disabled  person,  or 

66  https://btvnovinite.bg/bulgaria/obshtestvo/ravenstvoto-mezhdu-polovete-u-nas-realnost-ili-dobro-

pozhelanie.html. 

67   https://www.infograf.bg/article/1498390496000. 
68   https://www.challengingthelaw.com/biopravo/bednost-zdraven-status/. 
69   https://www.nsi.bg/sites/default/files/files/publications/WM2018.pdf. 

55 

 
 
 
 
 
 
 
 
 
 
 
 
spouse have cared for disabled persons who are permanently disabled and need such 
care, and as a result were not insured or had not received a pension. 

7.1.3  Overview of national acts  

The main act is the Code of Social Insurance (COSI). 

7.1.4  Political and societal debate and pending legislative proposals 

There is no political and societal debate on the specific issues of gender equality in pensions 
and  there  are  no  legislative  proposals  directly  related  to  this  issue.  This  is  not  because 
there  would  be  no  interest  in  the  problem  or  no  measures  are  needed;  just  the 
government, specifically in the last few years, maintains a low profile of problems related 
to gender equality and even tries to dissimulate all these issues. This is due to the strong 
conservative tendencies that the government of the dominant political force – which claims 
to be pro-European – complies with, due to pressure from allied political forces. The author 
would like to add to this that even the major opposition force, which is called the Bulgarian 
Socialist Party, over two years ago turned to conservatism and calls itself a conservative 
socialist  party.  Subsequently,  the  equal  rights  of  both  sexes  –  gender  equality  and  the 
rights of women, both in employment and social security – are not among their focus and 
priorities. 

7.2  Implementation of the principle of equal treatment for men and women in 

matters of social security 

Statutory social security has two pillars in Bulgaria – state social security (first Bulgarian 
pillar)  and  the  supplementary  obligatory  funded  pension  (second  Bulgarian  pillar).  The 
latter  tier  is  privately  managed.  In  the  second  Bulgarian  pillar  of  the  statutory  social 
security  scheme,  until  recently,  the  insurance  companies  used  gender-related  actuarial 
factors for the different life expectancy of women and men, as there was no explicit legal 
ban. The companies were allowed to implement such practices, with the sanction of the 
vice-president of the Commission for Financial Supervision.70 This contradicted EU law and 
EU case law on equality in statutory pensions. The Commission is an independent body for 
financial supervision, for ensuring stability and transparency of the non-banking financial 
system in Bulgaria. 

In Article 3 of the Code of Social Insurance (COSI) it is stated that one of the main guiding 
principles  of  the  state  /statutory/  social  security  system  is  equality  between  insured 
persons.  This  was  fully  valid  only  for  the  first  state  and  statutory  pillar.  After  positive 
changes,  the  COSI  implemented  S.G.  92/2017,  Article  169  paragraph  4  prescribing  as 
follows:  

‘It is not permitted to use sex as an actuarial factor in defining the amount of the 
pension for supplementary old age lifetime pensions’.71  

7.3  Personal scope 

The personal scope of state social security is in compliance with the Directive.  

The law differentiates between the benefits of persons insured against all social insurance 
risks, those insured against employment injuries and occupational diseases and persons 
insured  against  disablement  by  general  sickness /  common  illness,  old  age  and  death 
(Articles 11-13 COSI). 

70   About the Commission for Financial Supervision, Комисия за финансов надзор: https://www.fsc.bg/bg/za-

komisiyata/struktura/. 

71   This new provision was implemented in 2018 and will apply to the pensions still to come for people born 

after 1959. 

56 

 
 
 
 
 
 
 
 
 
 
 
 
Namely, as a matter of principle, Article 4 paragraph 1 COSI provides for the coverage of 
all  risks  for  workers  and  employees,  civil  servants,  judges  and  prosecutors,  and  those 
working on management contracts. Paragraph 3 regulates those people who are insured 
for  disablement  due  to  common  illness,  old  age  and  death  –  self-employed  people, 
including agricultural workers. These people can also insure themselves for common illness 
and maternity. 

According  to  Article  127  COSI,  persons  born  after  31  December  1959  are  obliged  to 
contribute to the obligatory supplementary social insurance in a universal pension fund if 
they are insured in the state Fund ‘Pensions’ and have not opted for supplementary social 
insurance with increased contribution to the state Fund ‘Pensions’.  

According  to  Article  124  COSI,  supplementary  obligatory  social  insurance  is  realised 
through contributions to a universal pension fund by an individual contract with a pension 
insurance company. Between the end of 2014 and 2018, new provisions were put in place 
for  persons  born  after  31  December  1959  –  COSI  and  additional  regulation  provide  for 
their  possibility  to  choose  and  switch  between  the  supplementary  social  insurance  in  a 
universal private pension fund and the supplementary social insurance through the state 
insurance in the Fund ‘Pensions’. Persons already contributing through private companies 
can  discontinue  their  contract  and  transfer  their  supplementary  insurance  to  the  state 
pension fund. As insecurity for the private funds was publicly expressed, and still remains, 
some  people  stopped  trusting  these  companies,  despite  any  eventual  benefit  related  to 
future higher replacement rate for the insured persons.  

Transfer of the supplementary insurance from the state fund back to the universal privately 
managed pension funds is also possible under certain conditions.  

7.4  Material scope 

The  material  scope  and  covered  risks  in  Article  2  COSI  are  in  compliance  with  the  EU 
requirements. 

According to Article 2 of the COSI, public social insurance provides benefits, allowances 
and pensions for the following conditions:  

a temporary inability to work;  
a temporarily reduced ability to work;  
disablement;  

1) 
2) 
3) 
4)  maternity;  
5) 
6) 
7) 

unemployment;  
old age; and  
death. 

7.5  Exclusions 

The main exclusion invoked by Bulgarian legislation is the difference in the pensionable 
age of men and women. Currently, according to Article 68 COSI, women acquire the right 
to a social insurance pension upon attaining the age of 60 years and 10 months and men 
at 63 years and 10 months, provided there are insured periods of 35 years and 2 months 
for  women  and  38  years  and  2  months  for  men.  Between  31  December  2016  and  31 
December  2029,  the  pensionable  age  for  women  will  increase  by  two  months  every 
calendar year and from 1 January 2030 by three months per year until the age of 65 is 
reached. For men, the scheme is as follows: from 31 December 2016 until 31 December 
2017 the pensionable age for men will increase by two months, and from 1 January 2018 
by  one  month  per  calendar  year  until  the  age  of  65  is  reached.  As  for  the  compulsory 
insurance periods for old age pension entitlement, from 31 December 2016 it will increase 
by  two  months  for  both  men  and  women,  until  37  years  is  reached  for  women  and  40 

57 

 
 
 
 
 
 
 
 
 
years for men. These provisions entered into force on 1 January 2016. According to these 
calculations, by the end of 2018 the pensionable age for women was 61 years 2 months 
and for men 64 years 1 month. 

The gender difference in the compulsory insurance periods is justified, among other things, 
by  the  risk  for  women  of  longer  periods  of  interruption  of  their  professional  and  career 
development  due  to  their  care  obligations,  and  by  increased  risk  of  long-term 
unemployment compared to men. 

Different pensionable ages for men and women for the moment are justified in Bulgaria, 
due to the impact of hardships of the transition and the heavy burden on a generation of 
working people during this period. The transition period for working people in Bulgaria was 
marked  by  numerous  and  fragmented  changes  in  legislation,  insecure  and  exploitative 
conditions  of  employment  and  also  the  risks  of  informal  work  and  work  without  social 
security  coverage.  This  is  even  more  true  for  women  than  for  men  during  this  period. 
Furthermore,  the  difficulties  led  to  a  worsened  health  status  and  disabilities,  of  women 
especially. This is a burden on working people in Bulgaria who were living in a period of 
transition and this burden is above the average burden in Western countries. The initial 
increase in the pensionable age for a generation of women since the transition (this age 
used  to  be  55  years)  is  already  very  abrupt  and  equalisation  with  men  at  64-65  years 
would be unbearable. 

7.6  Actuarial factors 

Actuarial factors are not used in the state pension fund. They were explicitly banned from 
the supplementary obligatory social security. Article 169 paragraph 4 currently reads that: 

‘It is not permitted to use sex as an actuarial factor in defining the amount of the 
pension  for  supplementary  old  age  lifetime  pensions’.  (amendment  of  COSI 
implemented with S.G. 92/2017).  

Hopefully,  private  pension  insurance  companies  will  not  use  such  factors  in  practice 
anymore. It was difficult to affirm the positive practice and implementation only for 2018; 
it must be ensured that no private companies will use such factors through monitoring and 
over a longer period. 

Prior to the legislative changes introduced at the end of 2017, sex was used as an actuarial 
factor by pension insurance companies under the second Bulgarian pillar. This practice was 
in contradiction to Council Directive 79/7/EEC on the principle of equal treatment of men 
and women in social security. This violation of EU law was reported to the EU Commission 
by  the  Bulgarian  Gender  Research  Foundation  –  an  organisation  dealing  with  gender 
equality issues since 1998 – and became an issue of concern also for the Commission in 
the EU Pilot No. 6013/14/JUST.  

In  addition  to  reporting  the  violation  to  the  Commission,  the  gender  equality  NGO 
supported the claims of a group of Bulgarian women born after December 1959. The latter, 
for  three  consecutive  years  before  the  Supreme  Administrative  Court,  attacked  the 
decision by the Commission for Financial Supervision allowing use of sex as an actuarial 
factor used by private insurance companies. The Court rejected all three complaints (the 
last judgment was No. 11601 of 2 November 2016 under court file No. 2694/2015), with 
the  main  argument  that  there  was  no  issue  of  discrimination  based  on  sex.  The  court 
apparently confused the insurance through the second pillar and the additional obligatory 
insurance  in  private  funds  with  the  third  pillar,  where  insurance  is  voluntary  and  where 
there was explicitly a ban of discrimination based on sex and of actuarial factors based on 
sex. 

58 

 
 
 
 
 
 
 
 
 
After receiving the final decisions from the Supreme administrative court, the women who 
complained decided, with the support of experts from NGOs, to submit a complaint to the 
ECtHR  in  Strasbourg.  Unfortunately,  as  mentioned  above,  it  was  unsuccessful,  being 
rejected at a very initial stage by a blanket letter from the Court. The European Court of 
HR  does  not  give  explanations  in  its  letters,  the  justification  is  based  on  general  initial 
admissibility  of  the  complaint  with  no  further  explanation.  The  letters  also  say  that  one 
should not ask further questions and explanations from the Court. It may have been seen 
by the ECtHR as not such a significant issue of human rights protection. 

Despite the negative outcome from the court cases, amendments in the COSI since 2014 
are a fact – introducing the possibility to choose between supplementary contribution to 
the state pension fund and to the private insurance funds, as well as the ban on the use 
of sex as an actuarial factor. They are the result of the legal pressure by women applicants 
who challenged the court and through EU Pilot 6013/14/JUST brought to the Commission 
by the Bulgarian Gender Research Foundation. 

7.7  Difficulties 

The difficulties for the application and compliance with EU law are rooted in the different 
three-pillar system in Bulgaria. As explained above, the second Bulgarian pillar is part of 
the statutory social security system. Bulgaria does not have professional pension schemes 
of the type recognised as belonging to the second EU pillar.  

Another  difficulty  were  the  existing  inequalities  in  the  second  Bulgarian  pillar  –  the 
supplementary obligatory social insurance for those born after 31 December 1959 and the 
use until the end of 2017 of sex as an actuarial factor. They were formally removed through 
the explicit ban on sex discrimination. 

7.8  Evaluation of implementation 

Currently there is no significant contradiction with respective EU anti-discrimination law in 
the  pension  schemes.  Until  recently,  it  was  difficult  to  implement  EU  law  in  relation  to 
actuarial factors, but finally, pressure led to a good outcome.  

7.9  Remaining issues 

There are no remaining issues in this section. 

59 

 
 
 
 
 
 
 
 
 
 
8 

Self-employed  workers  (Directive  2010/41/EU  and  some  relevant 
provisions of the Recast Directive) 

8.1  General (legal) context 

8.1.1  Surveys and reports on the specific difficulties of self-employed workers 

There are no such surveys and reports. 

8.1.2  Other issues 

There are no other issues. 

8.1.3  Overview of national acts 

- 

- 

COSI regulates the main personal and material scope of the social insurance of such 
persons. 
The  Regulation  on  social  insurance  for  self-employed  persons,  Bulgarian  citizens 
working  abroad  and  those  involved  in  maritime  activities  regulates  the  procedural 
requirements and concrete procedure of social insurance.  

8.1.4  Political and societal debate and pending legislative proposals 

There are no legislative proposals but here are some data about the self-employment and 
the employment of women. According to the National Statistical Institute ‘Women and men 
in Bulgaria 2018’, in 2017 there were 3 150 300 employed persons, of them 53.4 % were 
men  and  46.6 %  were  women.  In  all  categories  and  status  in  employment,  the  ratio  of 
women is higher than the one of men only in the category of unpaid family workers, where 
the  ratio  is  2:1  in  ‘favour’  of  women.  Out  of  the  self-employed  persons,  women  make 
28.2 % among the employers in this group and 35.9 % of the self-employed.  

Data  from  the  end  of  2018  show  that  at  the  end  of  December  2018,  there  were  over 
350 000 self-employed persons in Bulgaria. 

8.2  Implementation of Directive 2010/41/EU 

The  transposition  of  the  Directive  was  realised  through  amendments  to  the  Law  on 
Protection  from  Discrimination  (LPFD),  namely  amendments  by  Articles  7  paragraph  1 
point 19 and Article 37 paragraphs 2 and 3, as well as paragraph 1 points 1, 2 and 5 of 
the Additional Provisions to the Law. The amendments in Article 7 introduce an additional 
exception when differential treatment is not deemed discriminatory: in cases of differential 
treatment  when  taking  measures  aimed  at  initiatives  exclusively  or  mainly  promoting 
entrepreneurship among women in instances of their under-representation or to overcome 
and compensate for disadvantages in their professional careers. The provision in Article 37 
paragraph 2 prohibits discrimination based on any of the grounds of Article 4 paragraph 1 
of  the  Law  in  the  public  sector  or  real  economy  sector,  direct  or  indirect,  in  relation  to 
conducting an economic activity, including the establishment, equipping or expansion of 
an economic activity or in relation to starting or expanding any other form of such activity. 
paragraph  3  of  Article  37  prohibits  any  harassment  or  sexual  harassment  within  the 
framework of the activities mentioned above. 

It is worth mentioning the already existing Article 26 of the LPFD which provides for equal 
conditions for access to a profession or an activity, for opportunities to exercise the activity 
or  profession  and  for  development  in  this  sphere.  It  covers  the  scope  of  the  equal 
treatment principle enshrined in Article 4(1) of Directive 2010/41/EU: the establishment, 
equipping and expansion of a business or the launching or expansion of any other form of 
self-employed  activity,  despite  the  different  wording  of  the  two  provisions.  The  other 

60 

 
 
 
 
 
 
 
 
 
 
 
 
 
provisions which were amended in view of compliance with the Directive are those in Article 
4 of the Code on Social Insurance (COSI), which enhance the insurance rights of persons 
covered by the Directive.  

8.3  Personal scope 

8.3.1  Scope 

Bulgarian law does not contain a legal definition of self-employed persons, only a definition 
of different groups of the self-employed for the purposes of social security law. The COSI 
and  related  regulatory  acts  mention  different  categories  of  such  persons.  For  example, 
Article 4 of the COSI mentions the following categories: persons registered for performing 
freelance activities and crafts; persons exercising commercial activities, single owners of 
companies, owners or associates in trading companies; registered agricultural and tobacco 
producers;  and  the  spouses  of  the  categories  of  persons  mentioned  above  when  they 
participate  in  their  activities  with  their  consent.  Regulation  on  social  insurance  for  self-
employed  persons,72  Bulgarian  citizens  working  abroad  and  those  involved  in  maritime 
activities, the group of freelancers is further specified and can non-exhaustively comprise 
those performing the following types of activities: based on preliminary registration, legally 
required notaries public, attorneys-at-law (barristers and solicitors), accountants, licensed 
evaluators, experts in the courts and the prosecutor’s office, medical experts, insurance 
agents;  activities  for  which  they  are  obliged  to  pay  patent  tax,  without  being  single 
company owners; when the professional activity is conducted at their own risk and on their 
own  account;  scientists;  experts  in  the  field  of  culture  and  education;  architects; 
economists; journalists; and other persons performing a freelance activity, when they are 
duly registered. 

The author points  out that these provisions  of  the regulation already  existed before the 
adoption of the new Directive and this regulatory act was not amended for the purpose of 
harmonisation.  In  terms  of  rights  as  self-employed  persons,  all  categories  are  treated 
equally, including freelancers, agricultural producers, small business operators and others. 

8.3.2  Definitions 

Bulgarian law does not contain a legal definition of self-employed persons. 

8.3.3  Categorisation and coverage 

As  mentioned  above,  self-employed  workers  are  included  in  this  category,  as  well  as 
agricultural workers.  

8.3.4  Recognition of life partners 

The status of life partners is not explicitly regulated in this sphere or in any other sphere. 
In  terms  of  social  security,  the  COSI  only  mentions  contributing  spouses  as  subjects  of 
insurance rights. 

8.4  Material scope 

8.4.1  Implementation of Article 4 of Directive 2010/41/EU 

No specific information available. 

72   Regulation on social insurance for self-employed persons, Наредба за общественото осигуряване на 

самоосигуряващите се лица, българските граждани на работа в чужбина и морските лица, available in 
Bulgarian at: https://www.lex.bg/laws/ldoc/-549442559. 

61 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
8.4.2  Material scope 

Article 4 has been correctly transposed in Bulgarian legislation, firstly through the existing 
provision  in  Article  26  of  the  LPFD  which  provides  for  equal  conditions  for  access  to  a 
profession  or  an  activity,  for  opportunities  to  exercise  the  activity  or  profession  and  for 
development in this sphere. In addition, the equal treatment principle is ensured through 
the new provision in Article 37 paragraph 2 LPFD which prohibits any discrimination based 
on one of the grounds of Article 4 paragraph 1 of the LPFD in the public or real economy 
sector,  direct  or  indirect,  in  relation  to  conducting  an  economic  activity,  including  the 
establishment,  equipping  or  expansion  of  an  economic  activity  or  to  the  undertaking  or 
expansion of any other form of such activity. 

The  author  notes  that  the  provision  in  Article  26  is  broader  and  also  covers  the 
requirements of Article 14(1)(a) of Directive 2006/54/EC. 

8.5  Positive action 

As mentioned above, the amendment in Article 7 paragraph 1 point 19 LPFD introduces 
additional  positive  action  aimed  at 
initiatives  exclusively  or  mainly  promoting 
entrepreneurship among women in cases of their under-representation or to overcome and 
compensate for disadvantages in their professional careers. 

No specific real positive action in the implementation of this provision has been taken. 

8.6  Social protection 

According to Article 4 paragraph 3 of the COSI, the coverage for disability due to general 
illness,  for  old  age  and  death  is  mandatory  for  the  following  categories  of  persons:  1. 
persons registered as freelancers or craftspeople; 2. persons exercising trading activities, 
company  owners,  and  associates  in  a  trading  company;  3.  registered  agricultural  and 
tobacco producers. These persons can insure themselves voluntarily for the risks of general 
illness and maternity. 

Article  4  paragraph  9  of  the  COSI,  amended  in  view  of  harmonisation  with  Directive 
2010/41/EU,  regulates  voluntary  insurance  for  spouses  of  the  self-employed  persons 
mentioned above. As a matter of principle, the spouses of the persons mentioned in points 
1 and 4 (persons registered as freelancers or craftspeople; and registered agricultural and 
tobacco  producers),  when  with  their  consent  they  participate  in  the  activities  of  these 
persons,  can  be  registered  voluntarily  for  disability  due  to  general  illness,  old  age  and 
death, as well as for general illness and maternity, if they are not already insured on other 
grounds. 

The  insurance  contributions  for  the  spouses  of  the  persons  mentioned  in  point  1  of 
Article 4(3) of the COSI are based on the minimum insurance income for self-employed 
persons, defined by the Law on the Budget of the State Social Security Scheme, and the 
contributions for the spouses of registered agricultural and tobacco producers are based 
on the minimum insurance income for agricultural producers, defined explicitly in the same 
Law. 

The  concrete  procedure  for  the  insurance  of  self-employed  persons  is  regulated  by  the 
Regulation  on  social  insurance  for  self-employed  persons,  Bulgarian  citizens  working 
abroad and those involved in maritime activities. 

Voluntary  social  security  pension  schemes  exist  according  to  the  COSI  (Part  III  of  the 
Code) and they are open to everyone who is in a position to pay the contributions. The 
insurance with companies and funds for supplementary voluntary insurance is individual. 

62 

 
 
 
 
 
 
 
 
 
 
 
This insurance gives the  right  to an  individual  pension for age  or disability, a  survivor’s 
pension, etc. 

8.7  Maternity benefits 

The protection of pregnancy and maternity regarding self-employed persons and assisting 
spouses / life partners is in compliance with the requirements of the Directive both in terms 
of  opportunities  and  minimum  coverage.  In  fact,  the  self-employed  women  in  these 
categories who are insured for general illness and maternity, according to the conditions 
mentioned  above,  have  the  right  to  maternity  benefits  which  amount  to  90 %  of  their 
average  gross  remuneration.  The  condition  for  the  self-employed  is  to  have  paid 
contributions  for  these  risks  for  at  least  24  months  preceding  the  month  when  the 
temporary inability to work occurs. 

No  system  of  existing  services  supplying  temporary  replacements  or  existing  national 
social services is available either for the self-employed or their contributing partners. 

8.8  Occupational social security 

Although  an  occupational  social  security  scheme  is  part  of  another  pillar  according  to 
Bulgarian law, different from the second pillar referred to in the Recast Directive, voluntary 
social security pension schemes exist according to the COSI (Part III of the Code) and they 
are  open  to  everyone  who  is  in  a  position  to  pay  the  contributions.  The  insurance  with 
companies and funds for supplementary voluntary insurance is individual. This insurance 
gives the right to an individual pension for age or disability, a survivor’s pension, etc. 

8.8.1  Implementation of provisions regarding occupational social security 

The insurance in the private companies for supplementary voluntary insurance is not  of 
the type of occupational social security as regulated by the Recast Directive. Each physical 
person  from  the  age  of  16  can  insure  himself/herself  in  a  private  fund  or  be  insured 
voluntarily through an enterprise. This right is individual, and contributions to the fund are 
fixed and on fixed terms. 

This is used as a means to increase the pension income and the replacement rate, which 
is far from the dream of having a replacement rate of 70-80 %. For individuals it is still an 
onerous  task  to  contribute  to  a  fund  in  addition  to  paying  the  high  contributions  to  the 
statutory pension scheme. Even when it is practised as a voluntary pension scheme, higher 
levels  of payments are  necessary in order to be  reflected as an increase in the pension 
income, which is very low in Bulgaria. 

Therefore  –  and  especially  for  women  –  it  is  an  opportunity,  a  scheme  based  on 
contributions and on the investment capital and income of pension funds but it still seems 
not so affordable for the average category of employed persons. In addition, there is not 
yet enough confidence in the management capacity and transparency of private pension 
funds. 

8.8.2  Application  of  exceptions  for  self-employed  persons  regarding  matters  of 

occupational social security (Article 11 of Recast Directive 2006/54) 

As  the  schemes  are  a  different  type  from  those  regulated  in  the  Directive,  no  such 
exceptions from the principle of equality are regulated and practised. According to Article 
231 paragraph 1 of the COSI, the access to the supplementary pension insurance schemes 
is universally ensured, as discrimination based on a broad range of grounds is prohibited, 
including discrimination based on sex. Paragraph 2 explicitly prohibits discrimination based 
on  sex,  both  direct  and  indirect,  and  discrimination  based  on  family  status,  in  all  the 
contexts of insurance through a professional scheme, and namely: 

63 

 
 
 
 
 
 
 
 
 
 
 
- 
- 
- 

in the field of application and the requirements for access; 
in the obligation for contribution and calculation of the contributions; 
calculation of the pension payments, including the increases due to spouses and to 
persons who have a right to maintenance. 

8.9  Prohibition of discrimination 

The general provision of COSI on equality of insured persons is valid – Article 3 of COSI. 

8.10  Evaluation of implementation 

There are no issues of unequal treatment in law and no serious issues reported in practice. 
Implementation,  of  course,  is  always  an  issue,  and  especially  the  rights  and  insurance 
coverage of contributing spouses, where women prevail. 

8.11  Remaining issues 

There are no remaining issues. 

64 

 
 
 
 
 
 
 
 
 
 
9 

Goods and services (Directive 2004/113)73 

9.1  General (legal) context 

9.1.1  Surveys and reports about the difficulties linked to equal access to and supply of 

goods and services 

There are no such relevant surveys or documents. 

9.1.2  Specific  problems  of  discrimination 
market / collaborative economy 

in 

the  online  environment / digital 

There are no specific problems of discrimination based on sex identified in this context. 

9.1.3  Political and societal debate 

There is no substantial political and societal debate on the issue. 

9.2  Prohibition of direct and indirect discrimination 

Article 37 of the LPFD prohibits any refusal to supply goods or services and to supply lower 
quality goods or services, or their supply under less favourable conditions, based on the 
discrimination grounds defined in the law.  

9.3  Material scope 

The material scope of the national law has broader material scope than that specified in 
Article 3 of the Directive. No sphere is explicitly excluded so the law also applies to the 
content  of  the  media  and  advertising,  and  to  education.  Article  35  LPFD  requires  the 
application of methods aimed at the elimination of gender stereotyping in education and 
training. Educational institutions are obliged to include gender equality education. 

The case law of the Commission for Protection from Discrimination has explicitly confirmed 
the  application  of  the  equal  treatment  principle  also  in  the  field  of  the  media  and 
advertising.  

Nevertheless, some extreme cases of sexist advertisements brought before this equality 
body were not properly dealt with by the institution. The outcomes were as follows: either 
the  equality  body  deferred  the  case  to  other  institutions  (e.g.  the  Council  for  Electronic 
Media), or it suggested that the cases are rather for the self-regulatory body on advertising 
(established  by  businesses  in  2010).  Thus  the  institution  dealing  with  discrimination 
refused  to  examine  the  cases  through  a  discrimination  lens.  The  only  case  where  the 
equality body issued a decision was the case against Peshtera anisette where the outcome 
was negative for the women complainants.74 The arguments that it is rather a moral issue 
and that no discrimination was proved was upheld until the court  of last instance  – the 
Panel of five judges of the Supreme Administrative Court.75 

As  a  matter  of  fact,  in  September  2008,  13  women  brought  a  complaint  of  sex 
discrimination against a series of advertisements for the Peshtera anise aperitif, together 
with the producer, the joint stock company Vinprom Peshtera. They were entitled ‘Passion 
in Crystals’ and ‘The Season of Watermelons’ and were notorious for their television, print 
media and billboard versions. The advertisements displayed the ‘chalga’ (a Bulgarian music 

73   See e.g. Caracciolo di Torella, E. and McLellan, B., Gender equality and the collaborative economy (2018) 

European network of legal experts in gender equality and non-discrimination, available at: 
https://www.equalitylaw.eu/downloads/4573-gender-equality-and-the-collaborative-economy-pdf-721-kb. 

74  Judgment No. 201 from 15 September 2010 on case file 217/2008. 
75  Judgment 3616 from 13 March 2012 on case file 12183/2011. 

65 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
genre often referred to as pop-folk) singer Galena wearing a skimpy bathing suit patterned 
with watermelon motifs over her breasts. The advertisements are aimed at encouraging 
men  to  drink  anise  aperitif  with  watermelon.  The  woman  and  her  body  are  directly 
connected  with  easy  access  and  pleasure  gained  from  alcohol,  summer  and  a  slice  of 
watermelon.  

This case was brought before the Commission for Protection against Discrimination against 
the producer, the advertising agency, the media and all connected with the dissemination 
of  the  advertisement.  The  case  was  supported  by  the  Bulgarian  Gender  Research 
Foundation.  The  procedure  for  adjourning  the  first  hearing  was  unusually  lengthy  and 
contradictory and it took ten months for the Commission to start considering the case. The 
complainants were not provided with timely information by the Commission and some of 
them were even unofficially advised to abandon this impossible cause and to drop the case. 
No support was provided to the women despite the explicit provision for this in the law. 76 
The complainants were obliged – by the members of the panel of the CPD, ex officio, and 
without  any  request  from  the  respondents  –  to  explain  repeatedly  and  one  by  one  how 
they felt when they saw these adverts and why they felt discriminated against. Despite 
the  explicit  message  in  the  adverts,  the  explanations  by  the  women  and  four  detailed 
experts’ opinions, most of them in favour of the claim, at the end of 2010 the Commission 
found that no evidence of prima facie discrimination was available, and subsequently there 
was no sex discrimination in this case. It should be noted that one of the expert opinions 
solicited by the Commission was from a sexologist, as if there was something wrong with 
the  perceptions  and  sexual  lives  of  the  women  who  complained.  This  decision, 
subsequently appealed by the women, was confirmed by the Supreme Administrative Court 
with a decision in June 2011.77 The court confirmed the decision of the Commission and 
added  that  there  was  no  empirical  evidence  that  the  adverts  affected  the  majority  of 
women in Bulgaria and that the 13 women cannot be representative of women in Bulgaria. 
It  implied  that  they  were  possibly  too  sensitive  to  the  adverts.  The  court  said  that  the 
reference  to  international  instruments,  and  namely  to  CEDAW,  was  not  relevant  for  the 
court, as only the government and not the judiciary was bound by the international human 
rights instruments. It can be noted that in this case, the court refused to take into account 
not only international norms but any norms regulating discrimination and human rights, 
by saying that it is a problem which lies outside the scope of the law, a moral problem, 
raised through a subjective opinion. 

Upon appeal, a final judgment on this case was issued by the special panel of the Supreme 
Administrative Court on 13 March 2012. It held that prima facie sex discrimination could 
not  be  proved.  As  to  the  gender  stereotypes,  the  Court  refused  to  deal  with  them  as  a 
source of such discrimination with the ‘historic’ argument:  

‘…It has been a just and lawful assumption by the Commission that these are issues 
from the area of aesthetics, ethics, psychology and social science, and namely of a 
type  of  sub-culture,  which  issues  have  a  philosophical  dimension,  which  are 
characteristic of the state of society at the given historical moment and cannot, and 
could not, be solved within the limited factual frame of a concrete legal case.’ 

It is important to note at this stage that experts and women’s NGOs are convinced that 
the decisions of the equality body and, respectively, the court, which are in fact in favour 
of the corporate sector, are also due to the fact that the media and advertising sectors are 
excluded from the scope of the Directive. So, no obligations and sanctions derive from the 
Directive  for  the  government  and  private  actors  in  this  sphere.  This  situation  has  been 

76  According to Article 47 paragraph 9 of the Anti-Discrimination Act, the Commission provides independent 

support to victims of discrimination in the process of filing complaints against discrimination.  

77  Judgment No. 12450/2010. 

66 

 
 
 
 
 
particularly  harmful  for  Bulgarian  women  as  gender  stereotypes  and  the  role  of  women 
primarily as sex objects were broadly reinforced and disseminated on a very large scale.78 

This first case on sex discrimination in advertising, although unsuccessful, influenced the 
further practice of the equality body concerning its arguments and the Commission also 
took positive decisions condemning discrimination not in advertisements but in relation to 
the  content  of  the  media.  For  example,  at  the  end  of  2014,  the  Commission  issued  a 
decision against a journalist for a sexist expression in an internet article.79 

As  condemning  an  individual  journalist  is  much  easier  for  the  Commission,  the  author 
believes  that  the  reactions  of  the  equality  body  are  not  balanced  as  it  would  not  have 
applied the same standard to a corporate actor whose discriminatory acts are detrimental 
to citizens. 

9.4  Exceptions 

There  is  no  exception  to  the  areas  where  equality  in  the  field  of  goods  and  services  is 
applied. 

9.5  Justification of differences in treatment 

Since the end of 2007, Article 7 paragraph 1 p. 18 of the LPFD allows differential treatment 
in the provision of goods and services in accordance with EU law – when the provision of 
goods  and  services  exclusively  or  primarily  to  members  of  one  sex  is  justified  by  a 
legitimate aim and the means of achieving that aim are appropriate and necessary.  

9.6  Actuarial factors 

Article 246 paragraph 3 of the COSI ensures that sex will not be used as an actuarial factor 
in the calculation of pension benefits in the third pillar, the supplementary voluntary social 
insurance scheme. 

9.7  Interpretation of exception contained in Article 5(2) of Directive 2004/113 

The Test–Achats ruling resulted in amendments related to the use of sex as an actuarial 
factor  in  the  field  of  insurance  and  in  the  area  of  supplementary  voluntary  pension 
insurance. The provisions of the two codes were changed, respectively the Insurance Code 
(Article 65a) and the Social Insurance Code (Article 246 paragraph 3). The use of sex as 
an actuarial factor was prohibited for all contracts concluded after 20 December 2012. For 
contracts concluded up to 20 December 2012, the insurers may continue to include such 
factors if they use reliable and regularly updated statistical information, which is publicly 
available, and from which the determining importance of gender is obvious. 

9.8  Positive action measures (Article 6 of Directive 2004/113) 

No  general  specific  positive  action  measures  are  provided  in  the  field  but  Article  7 
paragraph 1 p. 18 of the LPFD allows differential treatment of persons based on sex in the 
provision of goods and services aimed exclusively at one of the sexes, provided that it has 
a legitimate aim and the means are appropriate and necessary.  

78  Important research in this field is the following study: Gender Stereotyping – a pervasive and overlooked 

source of Discrimination against Women in Bulgaria (2012), Special Alternative Report to the 4th, 5th, 6th 
and 7th governmental report for the 52nd session of CEDAW Committee, 9-27 July. Available at: 
http://eige.europa.eu/rdc/library/resource/aleph_eige000005979 and also at: 
https://www2.ohchr.org/english/bodies/cedaw/docs/ngos/BGRF_for_the_session_en.pdf. 

79  Judgment of the Commission for Protection from Discrimination of 18 December 2014 – http://www.kzd-

nondiscrimination.com/layout/index.php. 

67 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
9.9  Specific problems related to pregnancy, maternity or parenthood 

There are no specific problems related to pregnancy, motherhood and parenthood. 

9.10 Evaluation of implementation 

There are no issues of inequality in the law. It is necessary to ensure implementation, as 
in Bulgaria, the field covered by non-discrimination in goods and services is broader than 
the minimum EU standards. 

9.11  Remaining issues 

There are no other remaining issues. 

68 

 
 
 
 
 
 
 
10  Violence  against  women  and  domestic  violence  in  relation  to  the  Istanbul 

Convention 

10.1 General (legal) context 

10.1.1 Surveys and reports on issues of violence against women and domestic violence 

Bulgarian  society  has  a  deeply  rooted  notion  of  gender  difference  where  there  are  still 
traditional gender roles without a real sense of gender inequality. Bulgarian society as a 
whole still denies the existence of a power imbalance between men and women as well as 
the  prevalence  of  violence  and  abuse.  Many  women  are  silenced  by  social  and  cultural 
norms and endure violence and cruelty in their homes. In the last year and a half, over 55 
women died – about 40 in 2018 alone – at the hand of their intimate partners or relatives 
but the protests and declarations against these cases of femicide were silenced by certain 
conservative circles, even openly by persons in positions of power. Out of 138 intentional 
murders in Bulgaria, according to official data of the Ministry of Interior, over 40 were the 
murders  of  women  in  an  intimate  and  close  relationship.80  This  all  happened  and  was 
endured  in  the  context  of  fierce  opposition  of  these  circles  –  political,  religious,  media 
circles  –  to  the  issue  of  violence  against  women  and  to  the  ratification  of  the  Istanbul 
Convention. The term ‘gender’ and related notions of ‘gender equality’ and ‘gender-based 
violence’ were rejected, distorted and debased by these political and ideological circles. It 
can  be  noted  that  leading  social  scientists  and  women’s  rights  experts  mention  the  link 
between  the  increased  number  of  murdered  women  and  the  failed  ratification  of  the 
Istanbul Convention  – it is an issue of a  culture condoning violence against women and 
impunity for such acts of violence.  

Every fourth woman in Bulgaria is a victim of domestic violence. More than 70 % of women 
who are being abused at home do not seek help and medical assistance. Between 4 % and 
10 %  of  the  domestic  violence  victims  seek  justice,  an  estimated  900  000  women  in 
Bulgaria suffer from domestic abuse every year. Also, according to the author, there is a 
severe lack of adequate support services for victims, and Bulgaria does not fulfil the Council 
of  Europe  recommendation  of  safe  accommodation  in  specialised  women’s  shelters. 
Moreover, the absence  of specific provisions  criminalising domestic  violence and marital 
rape, until recently, at the end of 2018, called for reforms in the legal framework to ensure 
the protection of victims of such violence. 

All forms of GBV are known in Bulgaria and are encountered often  – domestic violence/ 
physical,  sexual,  psychological,  financial  economic  violence/,  sexual  violence,  sexual 
harassment, early and child marriages, stalking, etc. The main groups of more vulnerable 
women  and  girls  identified  also  through  the  work  of  NGOs,  are  Roma  women  and  girls, 
women and girls with disabilities, and women and girls seeking international protection. 
As main groups of victims of multiple discrimination, they were identified through the work 
of the Alliance for Protection from GBV.81 

There  is  a  National  Study  on  Domestic  and  Gender-Based  Violence,  conducted  and 
published with the support of the teams of Partners Bulgaria Foundation, Center for the 
Study  of  Democracy  and  Human  Rights  Academy,  Norway:  National  Study  on  Domestic 
and Gender-Based Violence (DGBV) and Elaboration of Victims Support Model (VSM).82  

The results and findings from this study confirm the trends mentioned above, and namely: 

80 

https://www.novinite.com/articles/194972/Dramatic+Increase+in+Murders+of+Women+in+Domestic+Viol
ence+in+Bulgaria. 

81   The NGO is a registered network of 11 NGOs all working in the field of GBV in Bulgaria. 
82   Policy Brief, 2016, available in English at: http://www.csd.bg/artShow.php?id=17883 and Domestic and 
Gender-Based Violence: Victims Support Model. (Practical advice for victims and guidelines for work of 
professionals in the area of domestic and gender-based violence), 2016, available in English at: 
http://www.csd.bg/artShow.php?id=17885. 

69 

 
 
 
 
 
 
 
 
-  

Low levels of awareness and willingness to share GBV; 
-  
-  
The reported prevalence is significantly lower than the real occurrence of GBV;  
-   Women are still more vulnerable in terms of multiple, repetitive and systematic GBV, 
and Roma women and girls are more vulnerable than the general population; 
The  prevention  measures  are  still  occasional  and  dependent  on  the  good  will  and 
resources  available  to  specific  actors,  awareness  of  GBV  victimisation  and 
perpetration is very low;  
The  inter-institutional  cooperation  lacks  well-established  and  enforced  rules, 
distribution of  obligations and mechanisms  of  communication; its level in different 
regions of the country varies. 

-  

EIGE Gender Equality Index 2017 shows that Bulgaria ranks first in the EU in intensity by 
cumulation of factors for different forms of violence against women and is last among all 
countries according to the indicator of effectiveness of response of state institutions, which 
is  also  an  indication  of  the  exacerbation  of  the  situation  in  the  country.  According  to 
Eurobarometer  for  the  same  period,  Bulgaria  occupies  the  ‘leading’  position  in  the  EU 
concerning gender stereotyping and sexism.83 

There  have  been  no  other  prevalent  qualitative  data  and  quantitative  research  data  on 
violence against women in Bulgaria. Data collection on issues of violence against women, 
including regular research and monitoring and also risk assessment, are still problematic 
in Bulgaria. There are no special studies on programmes for perpetrators of violence. 

The trends can be summarised as not so positive at the moment, also due to the current 
broader context in the EU and Europe.  

In this context, it is also worth mentioning the negative trends in the field of violence in 
schools.  School  violence  in  the  period  2015-2016  –  3043  cases;  for  2017-2018  –  3616 
cases, according to statistics  of the Ministry of  Education.84 Violence against teachers is 
also on a rise – for 2016-2017 – 220 cases; for 2017-2018, it amounts to 391 cases. 

The role of prevention emerges as one of the main recommendations for remedying the 
situation, as well as the increased role of and support for NGOs, whose effective work and 
promising  practices  in  the  field  are  an  asset  and  bring  hope.  Despite  the  unfortunate 
process around the  ratification  of Istanbul Convention, at the  end  of  2018 and with the 
support of women’s NGOs, the government and parliament initiated amendments in the 
Penal  Code,  providing  for  increased  and  strengthened  penal  protection  from  domestic 
violence – with qualifying and aggravating circumstances and with increased penalties.  

10.1.2 Overview of national acts on violence against women, domestic violence and issues 

related to the Istanbul Convention 

The main national acts regulating these issues are: 

• 
• 

The Criminal Code;85 
The Law on Protection from Domestic Violence – (LPDV adopted in 2005).86  

83   https://sofiaglobe.com/2017/11/21/bulgaria-eu-sexism-champion-81-say-a-womans-most-important-job-

is-taking-care-of-home-and-family/. 

84   https://m.dnes.bg/obshtestvo/2019/03/28/boi-zaplahi-unijeniia-agresiiata-v-uchilishte-s-ogromni-

razmeri.405888. 

85   Criminal Code, Наказателен кодекс, Bulgarian version available at: 

https://www.lex.bg/laws/ldoc/1589654529.  

86   Law on Protection from Domestic Violence, Закон за защита от домашното насилие – ЗЗДН 

http://lex.bg/laws/ldoc/2135501151. 

70 

 
 
 
 
 
 
 
 
 
 
The Regulation on the Implementation of the Law on Protection from Domestic Violence 87 
from 2010. 

The  judgment  of  the  Constitutional  Court  No  13/2018 under  Constitutional  file 
No. 3/201888  promulgated  in  State  Gazette  No  65/07.08.2018.  The  case  is  described  in 
detail below. 

10.1.3 National provisions on online violence and online harassment 

There are no specific national provisions on online violence yet. Protection can be obtained 
through civil and penal protection according to the law and the type of violence suffered. 

10.1.4 Political and societal debate 

The  penal  amendments  in  legislation  proposed  are  in  compliance  with  the  IC  and  were 
adopted at the beginning of 2019, also through the pressure and support by NGOs. 

Important changes in legislation were implemented at the beginning of 2019 and are in 
force in the Penal Code from 25 February 2019.89 They are related to the following issues: 
enhanced penalties for homicide, bodily harm, kidnapping, illegal constraint, compulsion, 
threat or stalking (systematic stalking not committed in conditions of domestic violence), 
as well as other forms of violence against women, such as forced marriage, widening the 
scope  of  the  protection  by  means  of  criminal  law  and  increasing  the  punishment  for 
coercion  to  marriage  and  cohabitation.  The  procedure  in  the  conditions  of  domestic 
violence is either initiated by the prosecutor and publicly prosecuted, or is of private-public 
nature in some instances, but the procedure cannot be discontinued; there is protection of 
the victims in cases where the aggressor is released from detention or prison, etc.  

Amendments  and  addenda  to  other  laws,  like  the  Criminal  Procedural  Code,  were 
implemented through the Law on amendments of the Penal Code, in order to guarantee 
the  right  of  a  victim  with  specific  needs  of  protection  to  be  informed  about  decisions 
regarding the perpetrator on any ground: decisions to impose and modify detention orders, 
arrest or release them from prison.  

According  to  the  definitions  in  the  Criminal  Code,  a  crime  is  considered  to  have  been 
committed in conditions of domestic violence  

‘if it is preceded by systematic physical, sexual or psychological violence, placing the 
person in economic dependence, coercive restriction of personal life, personal liberty 
and  personal  rights,  and  is  enforced  against  [a  parent  or  child,]  a  spouse  or  ex-
spouse, a person with whom one shares a child, a person with whom one is or has 
been in a de facto marital cohabitation, or a person with whom one lives or has lived 
in a common household.’90  

The  term  ‘systematic’  in  the  Criminal  Code  requires  victims  to  document  three  prior 
instances  of  violence  by  the  same  perpetrator  in  order  for  a  public  prosecution,  or  ‘ex 
officio’ prosecution, to be opened against the abuser. 

In the first half of 2020, the requirement for the acts of domestic violence to be systematic, 
in  order  to  be  criminally  prosecuted,  has  been  challenged  both  by  NGOs  and  the 
Ombudsperson of Bulgaria and draft amendments are in progress.  

87   Regulation on the Implementation of the Law on Protection from Domestic Violence, Правилник за 

прилагане на ЗЗДН, https://www.lex.bg/laws/ldoc/2135684122. 

88   Promulgated in State Gazette No. 65/07.08.2018. 
89   S.G. No. 16/2019. 
90   Penal Code, Art. 93 p.31. Bulgarian text is available at https://www.lex.bg/laws/ldoc/1589654529. 

71 

 
 
 
 
 
 
 
 
 
 
 
 
 
In addition to that, a draft Law for amendments in the Law on Protection from Domestic 
Violence is under review by a working group in the Ministry of Justice, also on the initiative 
of NGOs like the Alliance for Protection Against Gender-Based Violence. 

The  process  and  the  debates  related  to  the  ratification  of  the  Istanbul  Convention  are 
described in detail below. 

10.2 Ratification of the Istanbul Convention 

The  decision  of  the  Council  of  Ministers  for  the  signing  of  the  Istanbul  Convention  was 
adopted on 16 April 2016 and in this decision it is said that it is done ‘in view of forthcoming 
ratification’. The Convention was signed by Bulgaria on 21 April 2016. 

There was strong civil society pressure to ratify the Istanbul Convention (IC) and this was 
still  the  case  in  2017  and  2018.91  Among  the  reasons  advanced  by  the  government  for 
non-ratification at that time were the lack of full compliance of the Bulgarian legislation 
with the IC and also financial reasons, as the State realised that ratification would have 
budgetary implications. The main problematic fields were, among others: the concept of 
rape in Bulgarian law which was not in compliance with the main standards of the IC, as 
not based on the concept of a lack of consent; the notion of rape in Bulgarian law is an act 
against  the  sexual  integrity  of  women  only;  the  majority  of  criminal  acts  of  domestic 
violence (DV) were prosecuted as crimes of a private nature and a complaint by the victim 
is  required;  acts  like  stalking  were  not  criminalised;  there  is  no  system  in  place  for 
continuous support for active and relevant NGOs working in the field; there is no special 
policy encompassing all forms of violence against women (VAW) as gender-based violence 
(GBV); there is no effective mechanism for integrated policies against VAW and DV.  

Reviews of the legislation were carried out by the government, by experts from the CoE 
and  by  civil  society  organisations.  The  independent  reviews  showed  the  need  for 
amendments to the criminal law and to civil legislation and policies. As a matter of fact, 
since  2011,  NGOs  have  been  exerting  pressure  on  the  government  to  work  on  the 
necessary amendments and have offered their cooperation in order to achieve compliance 
much  earlier.  In  June  2016,  extensive  working  groups  (composed  of  representatives  of 
institutions, magistrates and civil society) were formed by the Minister  of Justice with a 
view to making suggestions for changes to, respectively, civil law and criminal law. The 
suggestions for amendments were formulated, in order to be in compliance with  the IC, 
by  a  special  working  group  in  December  2016-January  2017.  The  draft  laws  for 
amendments in the two spheres remained pending in the Ministry of Justice. 

In  2017,  the  main  challenge  for  the  legislative  process,  for  services  for  women  and 
cooperation  with  the  institutions  in  relation  to  VAW,  was  that  in  May-June  2017,  upon 
national elections provoked by resignation of the previous government, new elections were 
held and a new government and senior administration were installed, the third consecutive 
government for the year 2017. A very bad sign was that the ruling coalition comprised the 
so-called  United  Patriots  –  an  ad  hoc  coalition  of  three  nationalistic  parties.  It  played  a 
very negative role in the whole process around the ratification of the IC. 

Prior to the establishment of this new government, the Alliance for Protection from Gender- 
based  Violence92  had  continued  to  exert  pressure  for  the  ratification  of  the  Istanbul 

91  http://bgrf.org/articles/bulgaria-signs-istanbul-convention-on-preventing-violence-against-women-506. 

http://www.alliancedv.org/articles/ратифицирането-на-истанбулската-конвенция-ще-защити-правата-и-
на-децата-жертви-на-насилие-398. 
https://www.facebook.com/1531137970358869/photos/a.1532090413596958.1073741828.153113797035
8869/1605640609575271/?type=3&theater. 

92   The Alliance is legally registered and its members in the country are: Bulgarian Gender Research 

Foundation Sofia and Haskovo, Women’s Association Ekaterina Karavelova – Silistra, SOS – Families at Risk 
Foundation – Varna, Demetra Association – Burgas, NAYA Association – Targovishte, PULSE Foundation – 
Pernik, Open Door Centre Foundation – Pleven, Association Dinamika Centre – Russe, Foundation H and D 

72 

 
 
 
 
 
 
 
 
 
Convention which was signed by Bulgaria at the end of April 2016. This activity reached 
its  peak  in  the  second  half  of  2017,  upon  the  formation  of  the  new  government.  The 
Alliance  wanted  to  raise  awareness  in  society  concerning  the  need  for  protection  for  all 
groups of women, for every woman individually, and to ensure the provision of services, 
access to justice and financing for effective protection.  

After  the  broadcasting  of  media  reports  in  the  summer  of  2017,  when  several  cases  in 
which women were killed by their partners or husbands happened, the Alliance prepared 
a special campaign and lobbying  and issued a  strong statement by  openly  calling these 
cases  femicide  cases  and  demanding  that  the  institutions  take  responsibility  for  their 
failures,  take  action  and  immediately  ratify  the  Istanbul  Convention,  even  before  the 
adoption of the prepared legislative changes for harmonisation.  

In addition, the Alliance called for strong penal sanctions for all cases of violence against 
women  which  result  in  injuries  to  women,  often  including  life-changing  injuries.  The 
petition was sent to all institutions at national and local level, by all the members of the 
Alliance. The campaign by the Alliance triggered strong reactions in the media, as well as 
a very positive response from society as a whole. The campaign was provoked by tragic 
events  and  drastic  violations  of  the  standards  of  due  diligence  by  the  State.  It  was 
immediate and timely and very much to the point. It also called for security measures and 
the protection of the rights of all citizens.  

The  first  deadline  posed  to  the  government  to  initiate  legislative  reforms  in  the  penal 
sphere  and  to  start  the  ratification  process  of  the  Istanbul  Convention  was  15  October 
2017. After a short delay, responses from the government began in November 2017. Most 
importantly,  the  government  recognised  the  need  to  first  ratify  the  Convention  by  late 
2017  or  early  2018  and  immediately  afterwards  to  finalise  the  necessary  legislative 
amendments  together  with  experts,  including  civil  society.  The  legislative  changes  also 
included  the  regulation  of  specialised  services  for  victims  of  violence.  This  was  an 
achievement by civil society and mainly by women’s organisations.  

As a result, the draft law for the ratification of the Istanbul Convention was introduced to 
the  Council  of  Ministers  on  3  January  2018  but  opposition  forces,  well  supported  by 
conservative waves from abroad, were on the rise and reacted aggressively. From the end 
of  2017,  once  information  about  the  forthcoming  ratification  process  was  available,  the 
majority  of  electronic  media,  depending  on  unknown  sources,  started  attacking  the 
Convention,  portraying  it  as  a  tool  for  introducing  the  ‘third  gender’  and  a  means  to 
promote education on these issues in schools. They argued that this represented a great 
risk to Bulgarian children, a way to affirm the controversial term ‘gender’ and to introduce 
gender ideology. These media sources argued that the Convention was not in fact about 
VAW, but concerned trans and intersex issues which they regarded as ‘shameful issues’. 
The notion of combating gender stereotypes and stereotyped roles of men and women was 
also attacked as meaning that there was no limit to self-determination of people in their 
gender  identity,  including  in  different  genders,  described  as  ‘third  gender’.  The  same 
arguments were used by some people in the government, like the representatives of the 
United Patriots in the Council of Ministers, and some other members of the government 
who voted against the decision of the Council of Ministers to promote the ratification of the 
Istanbul Convention. 

Despite all this, at the beginning of 2018, on 11 January, the draft law for the ratification 
was introduced in the parliament of Bulgaria. In March 2018 it was referred by a majority 
in the parliament to the Constitutional Court for a preliminary ruling on constitutionality. 
For this reason, the draft bill for ratification was withdrawn from the Council of Ministers 
as well. By the end of July 2018, the Constitutional Court ruled by simple majority that the 
Convention  was  not  in  compliance  with  the  Bulgarian  Constitution  for  reasons  of  ‘going 

Gender Perspectives – Haskovo and Dimitrovgrad, Bulgarian Fund for Women – Sofia and Knowledge, 
Success, Change Association – Dupnitza. 

73 

 
 
 
 
 
 
against the principle of legal certainty’. Although not being a convincing ruling and not fully 
in compliance with the Constitution, this decision had a very damaging effect on the whole 
theme  for  gender  equality  and  for  the  fight  against  violence  against  women.  Therefore, 
Bulgaria remained just a signatory of the Istanbul Convention which is currently a political 
document and not a legally binding instrument. 

According to the author of this report, the ruling was clearly politically influenced and its 
arguments  are  weak  and  not  justified  by  the  Constitution  itself  or  by  international  law 
which is binding for Bulgaria, based on this same Constitution. 

By wrongly assuming that: 

‘The rule of law in the formal sense (the state of legal certainty) requires the meaning 
of  legal  terms  to  be  clear  and  unambiguous.  The  principle  of  legal  certainty  and 
predictability  precludes  the  existence  of  two  parallel  and  mutually  exclusive  terms 
for “gender”. The ratification of the Convention would lead to the introduction in the 
national  legal  system  of  a  concept  that  is  contrary  to  the  one  established  in  the 
Constitution. …’ 

the Constitutional Court wrongly concludes: 

‘Contrary to this constitutional understanding of gender as a biological category, the 
term “gender”/“genre” as a social construct exists in the Convention individually and 
along with the term “sex”/“sexe”.’ 

As  stated  above,  this  situation  distances  the  scope  of  the  Convention  from  the  stated 
purposes  of protecting women  and opens up room  for its contradictory implementation, 
which is contrary to the rule of law in a formal sense (Article 4(1) of the Constitution).93 

- 

As  more  of  these  ‘arguments’  were  given  above  in  the  section  about  general  concepts, 
presented here below are just several considerations: 
- 

The  decision  was  taken  outside  and  beyond  the  concrete  questions  asked  on 
constitutionality prior to ratification and it is inadmissible, according to the author, 
to rule in this case that the Convention is unconstitutional as a whole. 
The principle of legal certainty as applied in the formal sense is applied incorrectly: 
first of all, this principle has two important elements – the formal element of strict 
legal certainty and the second and most important element – the legal certainty of 
protection  of  rights of citizens. This  element prevails and  should have  prevailed in 
the ruling of the Constitutional court. And here deliberately it was not discussed and 
deliberately citizens were left without any protection against gender-based violence. 
On the other hand, the arguments expressed for justifying the lack of legal certainty, 
the deliberations around the term ‘gender’ are not based on any legal ground, the 
extension  of  ‘gender’  to  gender  ideology  is  completely  deliberate  and  without  any 
concrete referral to legal terms and possible contradiction with concrete legal terms 
and notions. 

The  ruling  impacted  all  further  use  and  interpretation  of  the  terms  and  limited  the 
institutional and public debate also on the issue of violence against women.  

Based on all these considerations, the author is of the opinion that the ruling can be revised 
by the Constitutional Court and that, in addition, the government and the parliament may 
decide to initiate again and finalise the ratification procedure by presenting their arguments 
and justification for that. 

93   Unofficial translation of judgment No 13 Sofia, 27 July 2018 (promulgated in State Gazette No 

65/07.08.2018) 

74 

 
 
 
 
 
 
 
 
 
 
 
 
11  Compliance  and  enforcement  aspects  (horizontal  provisions  of  all 

directives)  

11.1 General (legal) context 

11.1.1 Surveys  and  reports  about  the  particular  difficulties  related  to  obtaining  legal 

redress 

There are no  specific surveys and  reports about particular difficulties  for obtaining legal 
redress. 

11.1.2 Other issues related to the pursuit of a discrimination claim 

There  are  no  other  issues  to  mention  in  this  context,  other  than  the  ones  mentioned 
already in this report. 

11.1.3 Political and societal debate and pending legislative proposals 

There are no important public debates on this particular issue or any pending legislative 
proposals. 

11.2 Victimisation 

Victimisation is considered to be a form of discrimination, according to Article 5 of the Anti- 
Discrimination  Law.  Persons  who  have,  or  are  supposed  to  have,  instigated  an  action 
against  discrimination,  or  those  who  intend  to  instigate  such  an  action,  are  explicitly 
protected  against  discrimination.  Persons  related  to  such  persons  are  also  protected. 
Persons  who  have  refused  to  discriminate  are  also  protected  from  victimisation.  This  is 
according to the definition provided in the Additional provisions of the law  (paragraph 1 
p. 3). 

11.3 Access to courts 

11.3.1 Difficulties and barriers related to access to courts  

There are no particular difficulties or barriers related to access to courts. 

All persons whose rights have been violated have access to the courts (with the application 
of the Civil Procedural Code – CPC) or to the Commission for Protection from Discrimination 
(with  the  application  of  the  special  procedure  under  the  special  law,  the  Administrative 
Procedural Code and the CPC). Compensation can only be awarded by the courts. Article 71 
of the LPFD stipulates that each person whose rights have been violated under this law or 
other laws on equal treatment has the right to instigate a claim before the district court in 
order  to:  identify  the  violation;  order  the  defendant  to  discontinue  the  breach  and  to 
restore  the  situation,  as  well  as  to  refrain  from  violations  in  the  future;  and  award 
compensation for damages. 

Difficulties in access may be present in cases where the person discriminated against first 
resorts to the Commission to confirm the act of discrimination and, in such cases, despite 
the right to refer to the courts for compensation, this is often not sought or the procedure 
encounters  obstacles.  There  are  general  obstacles  related  to  seeking  compensation  for 
damages due to acts of discrimination – questions of evidence and proof, with low amounts 
of compensation, if any.  

A positive element in the court procedure is the possibility for trade unions and civil society 
organisations to join the procedure as interested parties or to initiate a discrimination case 
on  behalf  of  a  person  who  has  been  discriminated  against.  When  the  rights  of  many 

75 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
individuals  are  violated,  the  organisations  mentioned  can  initiate  a  discrimination 
procedure before the court. These rights are regulated in Article 71 paragraphs 2 and 3 of 
the LPFD. 

11.3.2 Availability of legal aid 

There is no specific category of legal aid available to victims of gender discrimination. Legal 
aid is available based on the general eligibility criteria and the required means test under 
the Legal Aid Act.94 The main principle is that legal aid in civil and administrative cases is 
provided based on documents presented by the interested party to the court showing that 
he/she has no means to cover the lawyer’s fees. The court takes into account the following 
circumstances when deciding about legal aid in civil and administrative matters/cases: the 
income of the person and her/his family; a declaration on the income status and property 
of the person; family status; health status; employment status; age; other circumstances 
(Article 23 paragraph 3).  

According to Article 22 paragraph 1 p. 7 of the Legal Aid Act, legal aid is granted explicitly 
to victims of domestic violence, or sexual violence, or victims of trafficking, when they do 
not have sufficient means for the defence by a lawyer. 

11.4 Horizontal effect of the applicable law 

11.4.1 Horizontal effect of relevant gender equality law 

There  are  no  particular  difficulties  in  the  application  of  the  horizontal  effect  of  gender 
equality law in Bulgaria by the Equality body and the courts. 

11.4.2 Impact of horizontal direct effects of the charter after Bauer 

The effect of this relatively new decision has not yet been discussed properly in Bulgaria 
but it will certainly come.  

11.5 Burden of proof 

Currently the provision on the burden of proof corresponds with EU standards, including 
the case law. Until recently, Article 9 of the LPFD was not in full compliance. Until March 
2015,  in  the  procedure  for  protection  against  discrimination,  persons  who  considered 
themselves to be victims of discrimination had to  prove (instead of merely to establish) 
facts from which it may be presumed that there had been discrimination (Article 9). Then 
the burden of proof falls upon the respondent and he/she has to prove that there has been 
no breach  of the principle  of equal treatment. Based on the practice  regarding cases of 
discrimination  on  the  ground  of  sex  from  before  the  amendment,  including  in  cases  of 
harassment and sexual harassment, it can be concluded that the lack of full compliance in 
the definition of the burden of proof posed very high requirements, especially for women 
who claimed sex discrimination. Hopefully, the Equality body and the courts will apply the 
burden of proof rules consistently. 

11.6 Remedies and sanctions  

11.6.1 Types of remedies and sanctions 

Upon finding a discriminatory act, the Commission for Protection from Discrimination has 
the power to impose coercive administrative measures and penal administrative sanctions. 
Coercive  administrative  measures  are  imposed  according  to  Article  76  of  the  LPFD  and 
include: obligatory orders to employers or other staff to discontinue the breaches of the 

94   Legal Aid Act, Закон за правната помощ, Bulgarian version available at: 

http://www.lex.bg/ldoc/2135511185. 

76 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
law  and  the  discrimination  practices,  as  well  as  impeding  the  enforcement  of  unlawful 
decisions  and  orders  of  the  employer  that  might  lead  to  discrimination.  Penal 
administrative sanctions are regulated in Articles 78-82 of the law and amount to fines and 
pecuniary sanctions for legal entities for identified acts of discrimination and breaches of 
the LPFD – the basic sanctions  ranging from  BGN 250 (around EUR  130) to BGN 2 000 
(around EUR 1 000). Increased sanctions are provided for repeated acts of discrimination, 
and also for non-compliance with the decisions of the equality body. 

According  to  Article  68  of  the  LPFD,  the  decisions  of  the  Commission  can  be  appealed 
according to the Administrative Procedural Code within 14 days. There is no deadline for 
complaining against a null and void decision of the Commission. 

Discrimination  cases  can  be  brought  before  the  Commission  or  before  the  courts  but 
compensation  can  only  be  ordered  by  the  civil  courts  when  an  act  of  discrimination  is 
identified (Article 71 paragraph 1 p. 3 LPFD). The procedure for awarding compensation is 
based on tort law provisions and principles (Article 45 et seq. of the Law on contracts and 
obligations).  There  is  no  practice  under  the  law  for  allocating  compensation  in  cases  of 
discrimination,  especially  discrimination  based  on  sex.  This  fact  alone  is  a  barrier  for 
victims  seeking  compensation.  The  other  reason  is  that  in  Bulgarian  legal  practice,  the 
amount  of  compensation  for  moral  damages,  which  in  most  cases  is  involved  in 
discrimination  cases,  is  very  low.  The  author  believes  that  the  issue  of  compensation  is 
still  a  challenge  for  both  lawyers  and  the  courts  in  the  effective  application  of  the  anti-
discrimination legislation. If compensation is awarded then enforcement is another issue 
but in this field both public enforcement and private bailiffs can be used.  

11.6.2 Effectiveness, proportionality and dissuasiveness 

In  the  author’s  opinion,  the  general  level  of  compensation,  as  well  as  compensation 
awarded  for  discrimination,  is  still  very  low  in  Bulgaria  and  is  not  proportionate  to  the 
damage suffered by the persons whose rights have been violated. As mentioned above, in 
practice,  there  is  no  case  law  on  compensation  awarded  for  sex  discrimination.  The 
sanctions imposed by the Commission are in many cases effective and proportionate but 
there are problems with their enforcement and their dissuasive effect. The fact that the 
decisions of the Commission are obligatory has to be used more effectively and awareness 
on their importance and value has to be increased. 

11.7 Equality body  

The  Commission  for  Protection  from  Discrimination  is  the  Equality  body  in  Bulgaria:95 
www.kzd-nondiscrimination.com/. 

The status and competences of the Commission are regulated in Chapter 3 of the Law on 
Protection from Discrimination: the Commission identifies violations, orders the prevention 
of or the halting of the violations and the restoration of the initial situation, issues coercive 
prescriptions, imposes sanctions, makes suggestions to national and local governmental 
bodies, provides independent support to victims of discrimination, gives opinions on drafts 
for normative acts, and carries out independent research and monitoring. The Commission 
is a member of the National Council on Gender Equality. 

The  Commission  for  Protection  from  Discrimination  is  not  a  body  that  deals  specifically 
with  the  promotion,  monitoring  or  analysis  of  equal  treatment  based  on  sex.  These 
functions of the equality body or other similar bodies, required by the EU standards, have 
not yet been implemented in a consistent manner by any of the bodies mentioned.  

The Commission for Protection from Discrimination was created in 2005 as an independent 
jurisdiction  under  the  law,  and  its  mandate  covers  all  types  of  direct  and  indirect 

95   Website of the Equality body: www.kzd-nondiscrimination.com/. 

77 

 
 
 
 
 
 
 
 
 
 
discrimination prohibited by law  and by international instruments to  which Bulgaria is a 
party.  The  Commission  has  broad  competences,  including  initiating  discrimination  cases 
on  its  own  initiative  and  assisting  victims  of  discrimination  in  bringing  a  claim.  The 
administrative procedure before the Commission is very flexible and easy to follow for the 
petitioners. The position and competences of the Commission are regulated in Chapter 3 
of  the  Law  on  Protection  from  Discrimination  (Article  40  et  seq.).  More  specifically,  the 
competences  of  the  Commission  are  provided  in  Article  47  of  the  law:  the  Commission 
establishes the violations, orders the prevention of or the discontinuing of violations and 
the restoration of the initial situation, issues coercive penalties, imposes sanctions, makes 
suggestions to national and local governmental bodies, provides independent support to 
victims  of  discrimination,  gives  opinions  on  drafts  for  normative  acts,  and  carries  out 
independent research and monitoring. 

Besides the prohibition of discrimination based on sex, the ban encompasses the grounds 
of  race,  nationality,  ethnicity,  human  genome,  citizenship,  origin,  religion  and  belief, 
education, conviction, political affiliation, personal or social status, disability, age, sexual 
orientation,  family  status,  property  status,  or  any  other  ground  defined  by  law  or  in  an 
international treaty to which Bulgaria is a party (Article 4 paragraph 1 of the LPFD). 

The  Commission  is  not  a  body  that  deals  with  the  promotion,  monitoring  or  analysis  of 
equal  treatment  based  on  sex  and  therefore  the  competence  of  the  Commission  is  not 
sufficient for the fulfilment of all the requirements for an equality body dealing with gender 
equality according to EU standards.  

11.8 Social partners  

The  social  partners  are  not  provided  with  a  special  role  concerning  this  issue  of  gender 
equality  by  legislation.  Besides  the  mentioning  of  the  organisations  of  the  workers  and 
employees as part of the National Council of Gender Equality and as part of the regional 
and local mechanisms for gender equality policy, no other specific role is played by them 
in  the  field.  The  social  partners  have  gender  equality  sections  in  their  structures, 
participate  in  the  consultative  body  on  gender  equality  at  the  Council  of  Ministers  and 
sometimes issue relevant research and statistics, although ideologically they do not always 
stand behind notions and the positions according to EU standards. In the author’s opinion, 
their role does not correspond to the higher requirements of the EU standards, and namely 
of the Recast Directive.  

Collective  agreements  in  Bulgaria  are  not  used  as  a  means  to  implement  EU  gender 
equality  law.  Collective  agreements  that  are  binding  for  the  respective  sectors  do  not 
generally have gender equality elements and do not promote specifically gender equality.  

11.9 Other relevant bodies 

The  following  can  be  mentioned  as  examples  of  gender  equality  interest  groups:  the 
Alliance for Protection from GBV, and the Bulgarian Gender Research Foundation – BGRF 
(separately  and  as  a  member  of  the  Alliance).  These  organisations  present  opinions, 
position papers, as in the process for ratification of the IC, support and protect victims in 
court  and  before  the  Equality  body.  These  NGOs  also  organise  support  of  other  NGOs, 
institutions and agencies around gender equality issues. As mentioned above, NGOs can 
support and initiate anti-discrimination cases, according to the LPFD.  

Other examples of such actions are opinions officially provided to institutions and to the 
Constitutional  Court.  For  example,  the  Alliance  for  Protection  from  GBV,  and  with  the 
support of each of the member organisations, presented a very extensive opinion in 2018 
before  the  Constitutional  Court  for  the  ratification  of  the  IC.  The  opinion  was  very  well 

78 

 
 
 
 
 
 
 
 
grounded  on  the  relevant  international  and  national  standards;  despite  this,  it  was  not 
taken into account by the Constitutional Court in its ruling.96 

Several anti-discrimination cases before the Equality body were supported by these NGOs, 
namely  the  Peshtera  case  about  the  discriminatory  advertisement  ‘The  season  of  the 
watermelons’ (see  sub-section 9.3). The cases before the Supreme administrative court 
against the use of sex as an actuarial factor in the supplementary obligatory social security 
scheme were also supported by the BGRF. 

Thanks  to  the  knowledge  of  experts  and  support  by  the  BGRF,  three  cases  related  to 
different forms of violence and discrimination of women and girls were taken under the OP 
CEDAW: V.K v Bulgaria; Jallow v Bulgaria; V.P.P. v Bulgaria.97 

Since 2004 and up to now, the BGRF and partners have organised the ‘Women’s Human 
Rights Training Institute’ in Bulgaria. The Institute is a unique initiative and a first-of-its-
kind  programme  aimed  at  building  and  developing  the  capacity  of  young  lawyers  from 
Central and Eastern European and the Newly Independent States (CEE/NIS) for litigation 
on women’s rights issues, including in international and European law: 

• 
• 
• 

violence against women;  
sexual and reproductive health and rights; and  
employment discrimination. 

The  Institute,  organised  by  the  BGRF  in  cooperation  with  its  partners,  has  already 
successfully completed six rounds and trained over 120 lawyers.98 

Since 2013, the Alliance for Protection from GBV has been conducting training courses for 
different stakeholders involved in the protection against GBV. Over 250 specialists, mainly 
from state institutions and also magistrates, were trained through the Academy. 

Despite the achievements of Bulgarian civil society in this field, and maybe just because 
of these achievements, these NGOs as human rights and women’s rights defenders have 
been subjected to attacks by conservative and nationalist circles, through media attacks, 
hate  speech,  threats  and  even  attacks  in  their  offices,  since  the  end  of  2017  and  the 
situation still continues. The attacks are motivated by the sole fact that the NGOs support 
human rights and women’s rights standards, as well as the adoption of the IC. They are 
blamed because they give support to victims of violence and discrimination and because 
they receive funds for that both from the State and from foreign sources. 

96   Website of the Const. Court – http://www.constcourt.bg/bg/Home/Home. 
97   V.K. v Bulgaria, Communication No. 20/2008; Isatou Jallow v Bulgaria, Communication No. 32/2012; V.P.P. 

v Bulgaria, Communication No. 31/2011. 

98   The WHRTI provides the participants with advanced and in-depth knowledge on women’s human rights 

protection in the three areas noted above. The WHRTI improves their practical skills in writing and advocacy 
for development of strategic litigation in the region both at the national and international levels through the 
use of regional and universal human rights mechanisms such as the European Convention on Human Rights 
(ECHR), the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and 
the Optional Protocol to CEDAW as well as the International Covenant on Civil and Political Rights (ICCPR) 
and the Optional Protocol to ICCPR. The WHRTI also gives lawyers an opportunity to get acquainted with 
the EU standards in the field of equal treatment of women and men, including the case law of the Court of 
Justice of the European Union.  
WHRTI encourages the development of professional connections and networks among women’s rights 
lawyers in the region. Alumnae of the Institute include over 120 lawyers, including men lawyers from 
Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Czech Republic, Croatia, Cyprus, Greece, 
Georgia, Germany, Hungary, Ireland, Latvia, Lithuania, Macedonia, Moldova, Poland, Romania, Russia, 
Serbia, Slovenia, Slovakia, Spain, Sweden, Tajikistan, Turkey, Ukraine, and Uzbekistan. And also several 
participants from Africa and Asia. 

79 

 
 
 
 
 
 
 
 
 
 
 
11.10 Evaluation of implementation 

Concerning the enforcement aspects of the anti-discrimination legislation, it can be stated 
that the law is in compliance with the EU standards, in some aspects it also goes beyond 
these  standards.  The  implementation  could  also  be  more  effective,  through  raising 
awareness of the role and importance of the law and mechanisms for protection. 

11.11 Remaining issues 

There are no other remaining issues. There are so many main issues that were exposed in 
detail. 

80 

 
 
 
 
 
12  Overall assessment  

The following transposition problems were mentioned in this report: 

1. 

2. 

3. 
4. 

5. 

6. 

7. 

There  is  not  yet  a  specific  body  dealing  with  gender  equality,  including  research, 
monitoring, coordination on a regular basis; the Advisory Council on Gender Equality 
has no  regular functions, and  even this format  has been limited in the last two to 
three years to a maximum of one in-presence meeting per year. The Commission for 
Protection from Discrimination has little practice on gender equality cases. Women 
do not receive the continuous guidance and protection they need to bring complaints 
and during the process. Gender discrimination issues are not well known either by 
the Commission or the courts. 
Gender  equality  has  been  compromised  by  limited  and  conservative  views, 
unfortunately expressed also by the Constitutional Court in its ruling on the Istanbul 
Convention.  The Court  was  subject to political  pressure and was also  trapped into 
the  fake  gender  ideology  theory  with  serious  negative  consequences  for  gender 
equality in Bulgaria. 
Lack of knowledge and awareness, and no practice of positive action. 
Lack of recognition of the practice of sexual harassment, and more specifically of it 
gendered nature and lack of sanctions for sexual harassment. 
No  real  measures  against  GPG,  no  substantial  practice  on  equal  pay  of  men  and 
women. 
Need to achieve harmonisation of the standards on work-life balance both for men 
and women, and for more part-time and flexible arrangements of work. 
Need for compliance and balanced reform for both sexes in the field of social security, 
both statutory and through private schemes, including insurance for self- employed 
persons. 

In the overall assessment, in addition to evaluations given in the different sections of the 
report, it can be stated as follows: There is a good and reliable legal basis in Bulgaria for 
developing  further  practice,  policies,  and  mechanisms  for  protection  from  sex 
discrimination and for achieving real, substantive gender equality, and in compliance with 
the EU standard. However, gender equality policy and mechanisms should be developed, 
as they are still rather weak and impact on the implementation of legislation and on real 
protection of rights. More clear definition of the role and competence of the courts vis-à-
vis that of the Equality body is needed in cases of discrimination; additional mechanisms 
for support and legal aid of victims of discrimination are also needed. 

The judgment No. 13 from 2018 of the Constitutional Court had, and probably will have, 
very negative results and impact on the development of the legislation and policy, not only 
in relation to VAW and GBV, but also on all issues of gender equality in Bulgaria. If not 
further  analysed  and  reviewed  as  soon  as  possible,  this  decision  going  against  EU 
standards  and  all  universal  standards,  will  maintain  and  reproduce  gender  stereotyping 
which is damaging for any gender equality issue in Bulgaria. 

81 

 
 
 
 
 
 
 
Annexes 

Judgment No 13 Sofia, 27 July 2018 

Dissenting Opinions:  
Georgi Angelov, Rumen Nenkov, Konstantin Penchev, Filip Dimitrov (promulgated in State 
Gazette No 65/07.08.2018). 

In a closed session of 27 July 2018 the Constitutional Court in a panel composed of: Boris 
Velchev – Chairperson, and Members: Tsanka Tsankova, Stefka Stoeva, Rumen Nenkov, 
Keti Markova, Georgi Angelov, Anastas Anastasov, Grozdan Iliev, Mariana Karagyozova-
Finkova, Konstantin Penchev, Filip Dimitrov, and Tanya Raykovska, with the participation 
of Clerk Gergana Ivanova, examined Constitutional Case No 3/2018, as reported by Judge 
Anastas Anastasov.  

The proceedings are under the first alternative of Article 149(1)(4) of the Constitution of 
the Republic of Bulgaria (the Constitution).  

The  case  was  initiated  on  8 February  2018  at  the  initiative  of  75 members  of  the  44th 
National Assembly. The Constitutional Court was asked for a ruling on the conformity of 
an international treaty signed by the Republic of Bulgaria on 21 April 2016 – the Council 
of Europe Convention on preventing and combating violence against women and domestic 
violence (the Convention), done on 11 May 2011 at Istanbul – with the Constitution prior 
to the ratification of this treaty.  

The Members of Parliament point out ‘the social and societal relevance of the Convention, 
the significant public interest and the high degree of political commitment of the society’ 
which motivated them to refer the matter to the Constitutional Court. The petitioners state 
that  the  National  Assembly  has  received  and  continues  to  receive  both  positive  and 
negative  opinions  on  the  Convention.  According  to  the  Members  of  Parliament,  the 
negative  opinions  maintain  that  this  international  treaty  introduces  concepts  that  are 
incompatible with Bulgarian public policy and unknown in our national legal system and 
that the meaning contained in the provisions of the Convention is different from what is 
generally accepted and commonly used. According to the petitioners, the main arguments 
for non-conformity with the Constitution in most of the negative opinions expressed relate 
to the provisions of Article 3(c), Article 12(1) and Article 14(1) of the Convention and the 
terms used therein: ‘… “socially constructed roles”, “stereotyped roles”, as well as the term 
“gender” as objective elements of the meaning of the concept of “gender”…’, in the sense 
of  whether  they  are  in  conformity  with  the  Constitution,  including  the  provision  of 
Article 46(1) of the Basic Law in the context of defining a ‘third gender’ and opening the 
possibility for same-sex marriages.  

The petitioners also state that comparing the terms and phrases used in the Convention 
with  the  meaning  of  the  constitutional  provisions  and  the  substantively  assessing  the 
conformity of the purposes, contents and nature of the Convention with the Constitution 
falls within the competence of the Constitutional Court, so it is for the latter to rule whether 
and to what extent fulfilling the obligations of the Republic of Bulgaria arising out of the 
Convention is compatible with the country’s Constitution.  

By its ruling of 20 March 2018, the court allowed the motion for substantive examination 
and  joined  the  interested  institutions  to  the  case;  it  invited  non-governmental 
organisations and prominent scientists and practitioners and gave them the opportunity to 
submit written statements and legal opinions.  

Of the joined institutions, the President of the Republic of Bulgaria, the Minister of Foreign 
Affairs,  the  Minister  of  Justice,  the  Minister  of  Health  and  the  State  Agency  for  Child 
Protection have submitted statements.  

82 

 
 
 
 
 
 
 
 
 
The  statement  of  the  President  of  the  Republic  of  Bulgaria  expresses  the  view  that  the 
Convention contains concepts and phrases with ambiguous meaning, thus giving grounds 
for  different  and  conflicting  interpretations,  allowing  for  ‘additional’  meanings  to  be 
attributed  to  these  concepts  and  phrases  outside  their  known  and  well-established 
meaning, but above all – outside the core values enshrined in the Bulgarian Constitution. 
According to the President, assigning the social attributes used in the Convention to the 
term  ‘gender’  is  not  in  conformity  with  the  clear  understanding  (as  contained  in  the 
Constitution) of the equality between men and women, of identifying the person as a man 
or  a  woman  (Article 6(2)  of  the  Constitution),  of  the  voluntary  union  (in  matrimony  or 
otherwise)  between  a  man  and  a  woman,  of  the  family  entrusted  with  raising  and 
upbringing  of  children,  of  the  special  protection  provided  by  the  State  to  mothers 
(Article 46 and Article 47(2) of the Constitution).  

The  Minister  of  Foreign  Affairs  believes  that  ‘the  concepts,  norms  and  regime  of  the 
Convention conform fully to the constitutional principles, norms and traditions’. She gives 
an  overview  of  the  current  Bulgarian  legislation  and  of  the  existing  international  legal 
commitments  and  concludes  that  the  terms  ‘gender’,  ‘socially  constructed  roles’  and 
‘stereotyped  roles’,  which  have  been  borrowed  from  sociology,  are  new  neither  to  the 
international legal doctrine nor to the domestic law of the Republic of Bulgaria. The Minister 
points  out  that,  in  the  context  of  the  Convention,  the  term  ‘gender’,  based  on  the  two 
sexes,  male  and  female,  takes  into  account  the  existence  of  socially  constructed  roles, 
behaviours, activities and attributes that a given society considers appropriate for women 
and  men.  She  also  points  out  that  the  Explanatory  Report  to  the  Convention  explicitly 
states that the term ‘gender’ is not intended as replacement for the terms ‘women’ and 
‘men’,  and  that  the  Convention  also  uses  the  term  ‘sex’,  which  shows  that  the  terms 
‘gender’  and  ‘sex’  have  independent  meanings.  With  regard  to  the  obligations  that  will 
arise for the Republic of Bulgaria after the ratification of the Convention following its entry 
into  force,  the  statement  maintains  that  they  are  entirely  related  to  specifying  the 
measures for preventing and combating violence against women and domestic violence in 
the context of implementing gender equality.   

In her statement, the Minister of Justice states that the Convention conforms fully to the 
Constitution and puts first the obligation to prevent and combat violence against women 
within the wider framework of achieving equality between women and men.  

In his statement on the case, the Minister of Health does not take a specific position. On 
the one hand, he believes that no problems may arise with regard to the understanding of 
the term ‘gender’ and with regard to the implementation of the provisions of Article 3(c), 
Article 12(1) and Article 14(1) of the Convention highlighted by the petitioners, since the 
main indicator for defining the protection provided by the Convention is the sex, and none 
other  than  the  only  possible  female  and  male  sexes  corresponding  to  their  biological 
definition, as perceived by the Constitution, the Bulgarian legal order and Bulgarian case 
law.  On  the  other  hand,  according  to  the  Minister,  there  could  be  an  issue  with  the 
implementation of Article 3(b), Article 4(3) and Article 12(3),  where there is a deviation 
from the principle of two biological sexes – male and female. The Minister assumes that 
because of the meaning thus attributed to those and to other provisions of the Convention, 
as well as because of the lack of clarity as to the categories used in these provisions, there 
is  reason  to  raise  the  question  of  whether  and  to  what  extent  the  fulfilment  of  the 
obligations of the Republic of Bulgaria arising out of the Convention would be compatible 
with certain parts of the Constitution.  

In its statement, the State Agency for Child Protection states that the framework nature 
of  the  Convention  should  be  taken  into  account  when  assessing  its  conformity  with  the 
Constitution, and that it would be wrong to use for the purposes of this assessment only 
the  Bulgarian  translation,  which  is  inaccurate  in  a  number  of  points,  including  in  the 
definitions of basic terms. The Agency supports the need to ratify the Convention and its 
conformity with the Constitution.  

83 

 
 
 
 
In pursuance of the given opportunity, the following non-governmental organisations also 
submitted  statements  on  the  case:  Bulgarian  Lawyers  for  Human  Rights  Foundation, 
Animus  Association  Foundation,  Alliance  for  Protection  against  Gender-Based  Violence 
Association, Bulgarian Fund for Women Foundation and the Institute of Modern Politics.  

The  Bulgarian  Lawyers  for  Human  Rights  Foundation  supports  the  statement  that  the 
Convention is in conformity with the provisions and the spirit of the Constitution, as well 
as of the current legislation on protection against domestic violence in Bulgaria. 

The  Animus  Association  Foundation  finds  that  the  Convention  is  in  conformity  with  the 
Constitution and does not impose anything different from the meaning of ‘sex’ used in the 
Bulgarian  Constitution,  the  Gender  Equality  Act  or  the  Protection  against  Discrimination 
Act.  

The  Alliance  for  Protection  against  Gender-Based  Violence  Association  supports  the 
statement that the provisions of the Convention conform to the Constitution, that they do 
not contain concepts that are unknown in our legal system, different from the generally 
accepted and commonly used ones and incompatible with the Bulgarian public order, and 
that  the  fulfilment  of  the  obligations  of  the  Republic  of  Bulgaria  arising  out  of  the 
Convention is compatible with the Constitution.  

The  Bulgarian  Fund  for  Women  Foundation  takes  the  firm  position  that  the  Convention 
conforms to the Constitution and that although it requires amendments to the Bulgarian 
legislation in a number of areas, it does not imply any amendments to the Basic Law. It 
states that the term used in Article 3(c) of the Convention has been mistranslated simply 
as ‘sex’, but in fact the definition refers to a term that denotes the social rather than the 
biological dimensions of the sex and in no way affects the predetermined biological sex. 
This  mistranslation  has  led  to  confusion  in  the  translation  of  other  key  terms  such  as 
‘gender-based violence against women’ in Article 3(d), ‘gender identity’ in Article 4(3), and 
‘non-stereotyped gender roles’ in Article 14(1) of the Convention.  

The  Institute  of  Modern  Politics  considers  that  the  Convention  does  not  conform  to  the 
Constitution  for  the  following  reasons:  Article 3(c)  and  Article 4(3)  of  the  Convention 
violate the principle of legal certainty, which is a constituent element of the rule of law, 
because they contain terms and phrases the meaning of which is not clear, precise and 
unambiguous, thus creating unpredictability of the legal implications and the legal system; 
Article 12  and  Article 14  of  the  Convention  are  not  in  conformity  with  Article 32(1), 
Article 47(1) and Article 47(2) of the Constitution, nor with the dignity of the individual as 
a  fundamental  constitutional  value  proclaimed  in  the  Preamble  of  the  Constitution;  the 
philosophy of the Convention is not in conformity with the principle of equality and equal 
treatment of women and men, in so far as it focuses not on the unlawful social phenomenon 
itself – violence against the intimate partner and domestic violence  – but rather on the 
idea that ‘women, as a rule, are victims, and men, as a rule, are abusers’.  

Written legal opinions have been given by Professor Pencho Penev, Professor Plamen Kirov 
and Professor Daniel Valchev.  

Professor  Pencho  Penev  argues  that  the  Convention  is  not  in  conformity  with  the  legal 
system established by the Constitution of the Republic of Bulgaria. According to him, when 
it  comes  to  ‘gender’,  the  Bulgarian  Constitution  perceives  it  as  its  biological  attribute  – 
gender is biologically determined and the human individual is a man or a woman. According 
to Professor Penev, the perception of another nature, another attribute of the term ‘gender’ 
will  lead  to  unacceptable  contradictions,  as  there  will  be  two  parallel  and  mutually 
incompatible concepts of the same term, one of which is different from the constitutionally 
established  one.  Professor  Penev  also  claims  that  Article 14  of  the  Convention  does  not 
conform to Article 47(1) of the Constitution. He maintains that the Convention adopts an 
educational  approach  involving  the  state  ‘at  all  levels  of  education’,  and  calls  for  active 

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involvement of other educational structures, as well as of non-governmental organisations 
and  the  media,  which  is  in  contradiction  with  Article 47(1)  of  the  Constitution,  which 
entrusts the upbringing to the parents and not to the State  or to the non-governmental 
sector.  

Professor  Plamen  Kirov  maintains  that  the  Convention,  in  some  of  its  parts,  does  not 
conform  to  the  constitutional  principles  and  norms  of  the  Bulgarian  Basic  Law  and  is  in 
sharp  conflict  with  the  Bulgarian  constitutional  identity.  According  to  Professor  Kirov, 
Article 3(c) and Article 4(3) of the Convention are not in compliance with the rule of law, 
in so far as their possible entry into force in the Republic of Bulgaria would create legal 
uncertainty  and  conflict  with  the  Bulgarian  constitutional  identity  as  they  contain  terms 
(‘gender’,  ‘gender  identity’)  which  are  foreign  to  the  Bulgarian  constitutional  and  legal 
system,  do  not  have  a  clear,  precise  and  generally  accepted  legal  meaning,  and  would 
create implications harmful to our legal system. Professor Kirov also states that Article 12 
and Article 14 of the Convention ‘contrast’ with the content of Article 32(1), Article 47(1) 
and  Article 47(2)  of  the  Constitution  as  they  cause  unacceptable  interference  with  the 
private life of the citizens by obliging the Bulgarian State to take measures for changing 
the social and cultural patterns of behaviour of the Bulgarian citizens in order to eradicate 
‘stereotyped roles for men and women’, without the latter being in any way connected with 
acts of violence, discriminatory behaviour or any other unlawful acts. At the same time, 
this  would  involve  gross  interference  of  the  State  in  the  upbringing  of  the  children,  in 
violation of the rights and responsibilities of the parents enshrined in the Basic Law.  

Professor Daniel Valchev believes that the provisions of Article 3(c) and Article 4(3) of the 
Convention do not conform to the rule of law proclaimed in the Preamble and in Article 4 
of the Constitution. According to Professor Valchev, the ratification of the Convention would 
result in the adoption in the Bulgarian legal system of an instrument that contains terms 
with ambiguous meaning, proportion and volume, which contradict terms that are already 
established in the legislation and the case law. He also states that this can also lead to 
provisional granting of additional rights and additional protection to individuals who have 
been selected not according to objective criteria but based on their claims about their own 
internal emotions. In view of this, he believes that Article 1, Article 2 and Article 3 of the 
Convention  do  not  conform  to  the  principle  of  equality  proclaimed  in  Article 6  of  the 
Constitution.  Professor  Valchev  also  asserts  non-conformity  of  the  provisions  of 
Article 12(1) and Article 14(1) of the Convention with the provision of Article 47(2) of the 
Constitution.  

The Constitutional Court finds it appropriate, first of all, to address some of the key points 
of  the  creation  process  of  the  Convention  and  its  essential  characteristics  as  an 
international  legal  instrument  for  combating  violence  against  women  and  domestic 
violence,  which  are  relevant  to  the  further  reasoning  for  the  substantive  ruling  on  the 
motion.  

Under the Convention,  the authentic text of the  treaty is in English and in French, both 
texts  being  equally  authentic.  The  assessment  of  the  Constitutional  Court,  in  the 
proceedings  under  the  first  alternative  of  Article 149(1)(4)  of  the  Constitution,  of  the 
conformity of the international treaty with the Constitution prior to its ratification should 
be made on the basis of the Bulgarian translation of the text of the Convention presented 
in the case by the Council of Ministers of the Republic of Bulgaria. Parliamentary debates 
will be held on the Bulgarian version of this text upon submission of a bill for ratification 
to  the  National  Assembly,  this  text  will  be  promulgated  in  the  State  Gazette  after  the 
possible ratification of the Convention and on its grounds the obligations of the Republic 
of Bulgaria, arising out  of the international treaty, will be carried out on the part of the 
State (Ruling of 23 October 1997 under Constitutional Case No 15/1997).  

Combating violence against women is an issue of fundamental importance for Europe and 
is  part  of  the  underlying  European  values.  Since  the  1990s,  the  Council  of  Europe,  in 

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particular  its  Steering  Committee  for  Equality  between  Women  and  Men  (CDEG),  has 
undertaken  a  series  of  initiatives  to  promote  the  protection  of  women  against  violence. 
The  first  comprehensive  strategy  for  the  prevention  of  violence  against  women  was 
Recommendation  Rec  (2002)5  of  the  Committee  of  Ministers  to  member  states  on  the 
protection of women against violence adopted in 2002. The Parliamentary Assembly of the 
Council  of  Europe  (PACE)  has  taken  a  firm  political  stance  against  all  forms  of  violence 
against women by adopting a number of resolutions and recommendations on the various 
forms of violence against women. In 2008, the Committee of Ministers of the Council of 
Europe  set  up  the  Ad  Hoc  Committee  on  Preventing  and  Combating  Violence  Against 
Women and Domestic Violence (CAHVIO) mandated to prepare legally binding standards 
which cover these two fields – violence against women and domestic violence. In 2011, 
the efforts of the Council of Europe ended with a draft convention prepared by CAHVIO to 
protect women against all forms of violence, and prevent, prosecute and eliminate violence 
against women and domestic violence (Article 1(1)(a) of the Convention).  

The Council of Europe Convention on preventing and combating violence against women 
and  domestic  violence  is  the  first  comprehensive  international  treaty  aimed  at  setting 
standards on the grounds of which the countries can harmonise their domestic legislation  

in  this  field.  The  Convention  explicitly  defines  violence  against  women  as  a  violation  of 
human rights and a form of discrimination against women. It includes specific provisions 
aimed  at  promoting  gender  equality  and  the  status  of  women  in  society.  These  legally 
binding  obligations  (Article 4,  Article 6,  Article 12,  Article 14)  are  expected  to  give  new 
impetus to achieving equality between women and men at national level and to reinforce 
a common objective  of  non-discrimination against women. The Convention expands the 
grounds of non-discrimination and takes an approach of gender-based understanding of 
violence against women and domestic violence.  

In parallel with the policy of the Council of Europe on protecting women against gender-
based violence and non-discrimination against women, the Council of Europe, in a number 
of  its  acts,  calls  on  the  member  states  of  the  Council  of  Europe  to  explicitly  prohibit 
discrimination based on ‘gender identity’ in national non-discrimination legislation and to 
include  the  human  rights  situation  of  ‘transgender  people’  in  the  mandate  of  national 
human  rights  institutions,  with  an  explicit  reference  to  ‘gender  identity’  as  a  form  of 
discrimination against women.  

In 2010, the Committee of Ministers of the Council of Europe adopted Recommendation 
CM/Rec (2010)5 on measures to combat discrimination on grounds of sexual orientation 
or  gender  identity.  Under  the  Recommendation,  the  member  states  of  the  Council  of 
Europe  should  take  appropriate  measures  to  guarantee  the  full  legal  recognition  of  a 
person’s  gender  reassignment  in  all  areas  of  life,  in  particular  by  making  possible  the 
change of name and gender in official documents in a quick, transparent and accessible 
way.  Member  states  should  take  all  necessary  measures  to  ensure  that,  once  gender 
reassignment has been completed and legally recognised, the right of transgender persons 
to marry a person  of the sex  opposite to their  reassigned  sex is  effectively guaranteed. 
The measures address a number of key issues for the rights of lesbian, gay, bisexual and 
transgender persons (LGBT).  

In 2014, the Council of Europe set up a structure dedicated to issues of sexual orientation 
and  gender  identity.  In  addition,  the  Secretariat  of  the  Council  of  Europe  also  set  up  a 
Working Party on Sexual Orientation and Gender Identity, also incorporated in 2014. The 
structure  assists  member  states  in  implementing  the  LGBT  Recommendations  of  the 
Committee of Ministers.  

In April 2015, the Parliamentary Assembly of the Council of Europe adopted a resolution 
against the discrimination against ‘transgender’ people in Europe (Resolution 2048 (2015), 
Discrimination  against  transgender  people  in  Europe).  The  Resolution  and  the  related 

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report address the various forms of discrimination, including difficulties in gaining access 
to work, housing and health services. The Resolution also emphasises that the Assembly 
is concerned about the  violations of fundamental rights, notably the right to private life 
and  to  physical  integrity,  faced  by  transgender  people  when  applying  for  legal  gender 
recognition and about the inadmissibility of the required preconditions such as sterilisation, 
divorce, a diagnosis of mental illness, surgical interventions and other medical treatments. 
The  member  states  of  the  Council  of  Europe  are  called  on  to  explicitly  prohibit 
discrimination  based  on  ‘gender  identity’  in  national  non-discrimination  legislation  and 
include  the  human  rights  situation  of  ‘transgender’  people  in  the  mandate  of  national 
human  rights  institutions,  with  an  explicit  reference  to  gender  identity,  as  well  as  to 
develop  quick,  transparent  and  accessible  procedures,  based  on  self-determination,  for 
changing the name and registered sex on the documents of transgender people, to make 
these procedures available for all people who seek to use them, irrespective of age, medical 
status, financial situation or police record, and to consider including a third gender option 
in identity documents for those who seek it. 

In 2015, the Council of Europe published a guide to legal gender recognition and protecting 
human rights of transgender persons,  which defines ‘gender identity’  as: ‘each person’s 
deeply felt internal and individual experience of gender, which may or may not correspond 
with  the  sex  assigned  at  birth,  including  a  personal  sense  of  one’s  body  and  other 
expressions of gender, including dress, speech and mannerisms’.  

The  foregoing  clearly  shows  the  link  between  the  policy  of  the  Council  of  Europe  on 
preventing  and  combating  violence  against  women  as  a  form  of  gender-based 
discrimination against women and the protection of certain rights of ‘transgender’ persons. 

The Constitutional Court of the Republic of Bulgaria assessed the arguments in the motion 
of  the  Members  of  Parliament,  in  the  statements  of  the  institutions  and  the  non-
governmental  organisations,  in  the  submitted  written  legal  opinions  and  the  written 
evidence accepted in the case. In order to rule on the conformity of the Convention with 
the Constitution, the Court, having discussed the objectives of the Convention, the general 
and ad hoc principles, definitions and policies adopted therein, and the provisions of the 
Convention in their relation and correlation, established the following: 

The Council of Europe Convention on preventing and combating violence against women 
and  domestic  violence  is  the  first  treaty  in  Europe  establishing  a  comprehensive  legal 
framework to protect women and girls against all forms of violence, and prevent, prosecute 
and eliminate violence against women, including domestic violence. The Convention places 
the  elimination  of  violence  against  women  within  the  wider  context  of  achieving  actual 
equality between women and men, thus recognising the violence against women as a form 
of discrimination. It expresses the determination of the Contracting States to also apply 
the  general  principles  for  the  protection  of  human  rights  to  women  and  girls  who  are 
victims of violence, as well as to the victims of domestic violence. This determination is 
based on the shared understanding of the member states of the aspirations of the Council 
of Europe to preserve and implement EU-wide principles and ideals.  

The Preamble of the Convention states that the member States of the Council of Europe 
and  the  other  signatories  thereto  aspire  to  create  ‘a  Europe  free  from  violence  against 
women  and  domestic  violence’.  To  this  end,  the  Convention  firmly  establishes  the  link 
between achieving gender equality and the eradication of violence against women. Based 
on this premise, it recognises the ‘structural nature’ of violence against women and that it 
is a manifestation of the historically unequal power  relations between men and women. 
The  Convention  consistently  asserts  that  violence  against  women  cannot  be  eliminated 
without  investing  in  gender  equality  and  that only  actual  (de  facto  and  de  jure)  gender 
equality and change in attitudes can really prevent such violence.  

87 

  
 
 
  
 
 
Article 1 of the Convention sets out its purposes. Paragraph 1 states as the specific purpose 
of the Convention the  protection of  women  against all  forms  of violence, as  well as the 
prevention, prosecution and elimination of violence against women and domestic violence. 
In line with the recognition in the Preamble that there is a link between eradicating violence 
against  women  and  achieving  gender  equality  in  law  and  in  fact,  it  is  specified  that  the 
Convention will contribute to the elimination of all forms of discrimination against women 
and  promote  substantive  equality  between  women  and  men.  This  provision  reflects  the 
need for a comprehensive approach  to the protection  of and assistance to all  victims  of 
violence against women and domestic violence. 

The  stated  purposes  of  the  Convention  fully  conform  to  the  fundamental  constitutional 
principles  of  the  Republic  of  Bulgaria.  The  Preamble  of  the  Constitution  highlights  the 
loyalty of the Bulgarian people to the universal human values of which humanism, equality, 
justice and tolerance are specified explicitly. The rights of the individual and their dignity 
and security have been elevated to the rank of a supreme constitutional principle. Equality 
is  among  the  fundamental  principles  of  the  current  Bulgarian  Constitution.  There  is  an 
explicit constitutional prohibition on any discrimination on the grounds of ‘sex’ (Article 6(2) 
of the Constitution). Furthermore, the principle of equality in terms of dignity and rights is 
also proclaimed in the Basic Law as a fundamental human right. It is specified in a number 
of constitutional provisions and is embodied within the substance of individual fundamental 
rights  and  freedoms.  The  current  legislative  framework  is  also  a  testimony  to  the 
aspirations  of  the  Republic  of  Bulgaria  to  protect  the  fundamental  human  rights  and,  in 
particular, to protect all victims of violence, including women and children, as well as to 
eliminate all forms of discrimination and achieve equality: Criminal Code (promulgated in 
State  Gazette  No  26/02.04.1968;  last  amended  in  State  Gazette  No  55/03.07.2018), 
in  State  Gazette  No 
Protection  against  Domestic  Violence  Act  (promulgated 
27/29.03.2005; last supplemented in State Gazette No 50/03.07.2015), Child Protection 
Act (promulgated in State Gazette No 48/13.06.2000; last amended in State Gazette No 
17/23.02.2018), Gender Equality Act (promulgated in State Gazette No 33/26.04.2016), 
Protection  against  Discrimination  Act  (promulgated  in  State  Gazette  No  86/30.09.2003; 
last amended in State Gazette No 7/19.01.2018).  

The Constitutional Court finds that despite its undeniable positive aspects, the Convention 
is internally contradictory and this contradiction creates duality therein. Thus, the meaning 
of some of its provisions goes beyond the Convention’s stated purposes and its title.  

In Article 1(1)(a) and (b) of the Convention the term ‘women’, which is undoubtedly based 
on the biological  understanding of the sexes, is used to define the  subject of protection 
against all forms of violence and discrimination. At the same time the legal definitions in 
Article 3(c)  of  the  Convention  (the  English  and  French  texts)  include  the  term 
‘gender’/‘genre’,  translated  into  Bulgarian  as  ‘пол’  (‘sex’),  with  the  following  meaning: 
‘socially  constructed  roles,  behaviours,  activities  and  attributes  that  a  given  society 
considers  appropriate  for  women  and  men’.  The  term  ‘gender’  has  been  translated  into 
Bulgarian  as  ‘социален  пол’  (‘social  gender’)  only  in  the  provision  of  Article 4(3)  of  the 
Convention. In the Convention the terms ‘sex’/‘sexe’ and ‘gender’/‘genre’ exist together, 
with 'gender' being included among the grounds of discrimination under Article 4(3) along 
with the biologically determined sex – ‘sex, gender ...’/ ‘sexe, genre …’. Thus, gender as a 
biological category (‘sex’), but also gender as a social construct (‘gender’) determined by 
the subjective perceptions and notions of the individual and of society about the role of 
men and women, are elevated to autonomous and equivalent categories of the Convention 
with their own legal existence. The term ‘gender’/‘genre’ exists within the Convention as 
a separate category different from sex as a biological construct. The Convention divides 
the biological  and social dimensions  of gender  and goes beyond the  view of the gender 
binary of the human species. With the meaning specified in Article 3(c), ‘gender’/‘genre’ 
becomes a fundamental term that also defines the meaning of other phrases used in the 
Convention and based on this term. The many provisions of the Convention, which contain 
phrases  based  on  this  term  –  Article 2(2),  Article 4(3),  Article 6,  Article 14,  Article 18, 

88 

 
 
 
Article 49(2), Article 60(2) and Article 60(3) of the Convention – are also testimony to the 
autonomous  role  of  the  term  ‘gender’/‘genre’.  ‘Gender’  is  used  in  the  phrases:  ‘gender 
equality’  (Preamble),  ‘gender-based  violence’  (Preamble,  Articles  2,  3,  4,  14),  ‘gender 
identity’ (Article 4(3)), ‘gender-sensitive policies’ (Article 6), ‘gender perspective’ (Article 
6),  ‘non-stereotyped  gender  roles’  (Article  14),  ‘gendered  understanding  of  violence’ 
(Article  18,  Article  49(2)),  ‘gender-based  asylum  claims’  (Article  60),  ‘gender-sensitive 
interpretation’  (Article  60(2)),  ‘gender-sensitive  reception  procedures’  (Article  60(3)). 
These phrases, depending on the interpretation, may lead to different and contradictory 
understandings  of  the  philosophy  of  the  Convention.  The  Convention  is  the  first 
international treaty signed by the Republic of Bulgaria which gives such a definition of the 
term ‘gender’ (Article 3(c) of the Convention).  

The provision of Article 4(3) of the Convention requires the Parties thereto to implement 
the provisions of the Convention, in particular measures to protect the rights of victims,  

‘…without discrimination on any ground such as sex, gender, race, colour, language, 
religion, political or other opinion, national or social origin, association with a national 
minority,  property,  birth,  sexual  orientation,  gender  identity,  age,  state  of  health, 
disability, marital status, migrant or refugee status, or other status’.  

According to paragraph 53 of the Explanatory Report to the Convention, accompanying its 
creation, and in the light of the broad  case law of the European Court of  Human Rights 
under  Article 14  of  the  European  Convention  for  the  Protection  of  Human  Rights  and 
Fundamental Freedoms, the list under Article 4(3) has been significantly expanded as it 
seeks  to  provide  protection  against  discrimination  on  multiple  grounds  to  a  number  of 
vulnerable  groups.  According  to  the  Report,  this  also  includes  persons  that  do  not 
correspond to what society has established as belonging to ‘male’ or ‘female’ categories.  

Although the Convention does not specifically regulate the rights of ‘transgender’ people, 
it is also the first international treaty signed by the Republic of Bulgaria which explicitly 
includes ‘gender identity’ in Article 4(3) as a ground of discrimination. It should be specified 
that  the  phrase  ‘gender  identity’ / ‘l’identité  de  genre’  does  not  refer  to  ‘gender’  as  a 
biological category, but rather to ‘gender’ in the meaning given in the definition of the term 
in  Article 3(c)  of  the  Convention.  The  Convention  does  not  define  ‘gender  identity’ / 
‘l’identité  de  genre’.  The  Explanatory  Report  to  the  Convention  (paragraph 53)  defines 
‘gender identity’ as follows:  

‘Certain groups of individuals may also experience discrimination on the basis of their 
gender identity, which in simple terms means that the gender they identify with is 
not in conformity with the sex assigned to them at birth. This includes categories of 
individuals such as transgender or transsexual persons, cross-dressers, transvestites 
and other groups of persons that do not correspond to what society has established 
as belonging to “male” or “female” categories’.  

Given  the  absence  of  a  definition  of  the  term  ‘gender  identity’  in  the  Convention,  its 
meaning should be understood not only in view of the Explanatory Report, but also in light 
of the policy of the Council of Europe on protecting certain rights of transgender persons. 
The  above-mentioned  acts  of  the  Council  of  Europe  aimed  against  discrimination  and 
violence on the basis of sexual orientation and gender identity clearly serve to clarify the 
meaning of the terms ‘gender’ and ‘gender identity’ in the context of the approach of the 
Council of Europe to promote the understanding that the biological and social dimensions 
of  gender  are  not  inextricably  linked  and  exist  independently  of  each  other;  the 
understanding of the ability of people to self-determine their gender; as well as to ensure 
full legal recognition by the State of the gender reassignment.  

The analysis of the terms ‘gender’/‘genre’, translated into Bulgarian, firstly as ‘пол’ (‘sex’) 
and  secondly  as  ‘социален  пол’  (‘social  gender’),  and  ‘gender  identity’ /  ‘l’identité  de 

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genre’, translated into Bulgarian as ‘идентичност, основана на пола’ (sex-based identity) 
indicates  that  the  terms  are  connected  and  should  be  understood  through  one  another. 
The  term  ‘gender’/‘genre’  with  the  meaning  ‘socially  constructed  roles,  behaviours, 
activities and attributes that a given society  considers appropriate  for  women and men’ 
reflects certain social and cultural notions of men and women created within a given society 
at  a  given  moment.  These  notions  are  evolving  to  the  extent  that  newer  notions  can 
exclude the older ones, for example, that gender is biologically determined. From this point 
of view, a biological man might have a female ‘gender’/‘genre’ and vice versa. This leads 
to the possibility of the individual choosing, at their own will, a different ‘gender identity’ 
that might not coincide with the biological one. This understanding expresses  aspects of 
the ‘gender ideology’ – a collection of ideas, convictions and beliefs that the biologically 
determined sexual characteristics are irrelevant, and only the gender self-identification is 
relevant.  

The absence of a common understanding of the term ‘gender’/‘genre’ is also illustrated by 
the active public and political debate ‘for’ and ‘against’ the gender ideology that has been 
ongoing for over two decades in dozens of countries.  

As stated, the  Convention uses two terms  for  gender  –  ‘sex’ and ‘gender’. It introduces 
the  phrase  ‘gender  identity’,  which  stems  from  the  notion  that  the  social  dimension  of 
gender is independent of the biological one. Any distancing from the term ‘gender’ as a 
biological attribute (man/woman) distances the Convention  from the  stated purposes  of 
protecting  women  against  all  forms  of  violence.  The  internal  contradiction  in  the 
Convention is obvious when comparing the purposes stated in Article 1 of the Convention 
and  its  title  with  the  term  ‘gender’  as  defined  in  the  Convention.  Moreover,  the  very 
definition of the term  ‘gender’ would have been redundant, if the stated purpose of the 
international  treaty  actually  corresponded  to  its  title  ‘…  on  preventing  and  combating 
violence against women …’. This duality of the terminology, of the meaning of the terms 
used, in practice does not lead to the achievement of gender equality, but rather blurs the 
differences between sexes thus resulting in the principle of equality losing its meaning.  

The  equality  of  the  genders  before  the  law  is  proclaimed  at  constitutional  level  in 
Article 6(2)  of  the  Basic  Law.  Equality  does  not  mean  treating  both  sexes  equally,  but 
rather taking into consideration the biological traits and differences between them. Sex is 
among the grounds explicitly established in Article 6(2) of the Constitution, on the basis 
of which no privileges or limitations of rights are admissible (Judgment No 1 of 27 January 
2005  under  Constitutional  Case  No 8/2004).  The  constitutional  text  examines  biological 
sex as a term with unambiguous legal meaning. This is confirmed both by the discussions 
on  the  provision  as  part  of  the  draft  Constitution  ‘...  for  equality  between  a  man  and  a 
woman’  (Minutes  of  the  Committee  for  Drafting  a  Project  of  a  Bulgarian  Constitution  of 
13 February 1991 and 10 June 1991) and by the case law of the Constitutional Court on 
the interpretation of Article 6(2), where the criterion ‘sex’ is excluded from the group of 
attributes that are acquired or changed in the process of social realisation of the citizens 
in society (Judgment No 14 of 10 November 1992 under Constitutional Case No 14/92).  

The Constitution and the entire Bulgarian legislation are built on the understanding of the 
gender binary of the human species. In fact, the Constitution clearly perceives the social 
dimension of gender in interaction with its biological determination – Article 47(2) of the 
Basic Law. In this constitutional provision, the biological sex ‘woman’ is linked to the social 
role ‘mother’ through ‘birth’ and ‘obstetrical care’. In short, the term ‘gender’ is used by 
the constitutional legislator as a unity of biological determination and social construct. The 
social dimension  of the Constitution does not  create a  social gender independent  of the 
biological sex as provided for in the Convention.  

At the level of international law, the understanding of gender as a unity of biological and 
social  dimension  is  enshrined  in  the  Rome  Statute  of  the  International  Criminal  Court 

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(promulgated in State Gazette No 68/16.07.2002) Pursuant to the provision of Article 7(3) 
of the Rome Statute:  

‘For the purpose of this Statute, it is understood that the term ‘gender’ refers to the 
two sexes, male and female, within the context of society. The term ‘gender’ does 
not indicate any meaning different from the above.’  

Traditionally, human society is built on gender binary, that is the existence of two opposite 
sexes,  each  being  assigned  specific  biological  and  social  functions  and  responsibilities. 
Biological sex is determined at birth and is in the foundation of the sex for the purposes of 
civil  matters.  The  importance  of  the  sex  for  the  purposes  of  civil  matters  in  the  legal 
regulation  of  social  relations  (cohabitation,  parenthood)  requires  clarity,  indisputability, 
stability and security.  

The constitutional definition of matrimony, as it has always existed in the Bulgarian legal 
tradition, is contained in the provision of Article 46(1), which defines it as ‘…a voluntary 
union  of  a  man  and  a  woman’.  The  constitutional  system  of  matrimony  is  built  on  the 
understanding of the existence of two biologically determined sexes  – male and female. 
By defining matrimony as a voluntary union between a man and a woman the Constitution 
makes the different biological sex imperative for people who want to enter into marriage. 
The understanding of matrimony as a relationship between a man and a woman is deeply 
rooted  in  the  Bulgarian  legal  consciousness,  and  is  thus  in  the  foundation  of  the 
constitutional system.  

Contrary to this constitutional understanding of gender as a biological category, the term 
‘gender’/‘genre’ as a social construct exists in the Convention individually and along with 
the term ‘sex’/‘sexe’. As stated above, this situation distances the scope of the Convention 
from  the  stated  purposes  of  protecting  women  and  opens  up  room  for  its  contradictory 
implementation, which is contrary to the rule of law in a formal sense (Article 4(1) of the 
Constitution).  

The  Convention  paves  the  way  for  the  introduction  of  the  terms  ‘gender’  and  ‘gender 
identity’,  as  defined  in  Article 3(c),  in  the  Bulgarian  legal  system.  The  requirements  of 
Article 4(3)  of  the  Convention  would  require  the  Republic  of  Bulgaria  to  establish 
procedures ensuring the legal recognition of genders other than the biological ones, which 
is contrary to the Constitution. 

The rule of law exists in the case law of the Constitutional Court with familiar and well-
established meaning, which combines  formal and material  aspects. Today the European 
legal  area  widely  shares  the  understanding  of  the  rule  of  law,  which  includes  both  the 
principle of legal certainty – the formal aspect – and the principle of substantive justice – 
the  substantive  aspect  (judgment  No 1  of  27 January  2005  under  Constitutional  case 
No 8/2004).  

The rule of law in the formal sense (the state of legal certainty) requires the meaning of 
legal terms to be clear and unambiguous. The principle of legal certainty and predictability 
precludes  the  existence  of  two  parallel  and  mutually  exclusive  terms  for  ‘gender’.  The 
ratification of the Convention would lead to the introduction in the national legal system of 
a concept that is contrary to the one established in the Constitution.  

The rule of law is the foundation of the established constitutional order. The proceedings 
under the first alternative of Article 149(1)(4) of the Basic Law ensure the implementation 
of the international community’s acquis in the national legal system while preserving the 
core values established by the Constitution.  

The  defining  of  ‘gender’  in  the  Convention  as  a  social  construct  in  fact  blurs  the  lines 
between  both  sexes  –  man  and  woman  as  biologically  determined.  However,  if  society 

91 

 
 
 
 
 
 
 
 
 
loses the ability to distinguish between a woman and a man, combating violence against 
women remains only a formal but unattainable commitment.  

The Constitutional Court holds that the Convention, due to the provisions of Article 3(c) 
and  Article 4(3)  which  are  imperative  to  the  meaning  of  the  international  treaty  in  its 
entirety, does not conform to the Constitution. It is precisely in respect of these provisions 
that the Convention does not allow any reservation. Under Article 78(1) of the international 
treaty: ‘No reservation may be made in respect of any provision of this Convention, with 
the exceptions provided for in paragraphs 2 and 3’. The Constitutional Court emphasises 
that,  pursuant  to  Article 5(4)  of  the  Basic  Law,  once  this  international  treaty  has  been 
ratified, promulgated and enters into force for the Republic of Bulgaria, it will become a 
part  of  the  domestic  law  of  the  country  and  will  take  precedence  over  any  conflicting 
national legislation (Judgment No 7 of 2 July 1992 under Constitutional case No 6/1992).  

Considering the above and on the grounds of the first alternative of Article 149(1)(4) of 
the Constitution, the Court 

HEREBY RULES:  
The Council of Europe Convention on preventing and combating violence against women 
and  domestic  violence,  done  on  11 May  2011  at  Istanbul,  signed  by  the  Republic  of 
Bulgaria on 21 April 2016, does not conform to the Constitution of the Republic of Bulgaria. 

The judgment was rendered with eight votes.  

Judges Rumen Nenkov, Georgi Angelov, Konstantin Penchev and Filip Dimitrov signed the 
judgment with dissenting opinion. 

Chairperson: Boris Velchev 

DISSENTING OPINION  
of  the  judges  Rumen  Nenkov  and  Georgi  Angelov  on  the  Judgment  in  Case  No 
3/2018 of the Constitutional Court of the Republic of Bulgaria  

We  do  not  agree  with  the  judgment  rendered  by  the  Constitutional  Court’s  majority 
because, contrary to their  opinion, we believe that the Council of Europe Convention on 
preventing and combating violence against women and domestic violence (the Convention) 
is compatible with the Constitution of the Republic of Bulgaria.  

As a rule, given its place and purpose as defined by the Basic Law, the Constitutional Court 
must not participate in any struggles for public support through its acts nor may it evaluate 
any social theory or ideology. Its task in this case was to reveal through interpretation the 
precise meaning of the provisions of a multilateral international treaty and to assess on 
that basis whether there is compatibility with the spirit and letter of the Constitution of the 
Republic of Bulgaria.  

This  constitutional  case  was  initiated  on  a  request  provisionally  featuring  three  layers  – 
constitutional,  political  and  cultural.  The  only  relevant  question  to  the  judgment  is  the 
constitutional question raised – whether the Convention is in conflict with the Basic Law.  

The  Convention  subjected  to  constitutional  review  is  applicable  to  all  forms  of  violence 
against women, including domestic violence (Article 2(1)). Furthermore, the  contracting 
Parties are encouraged by Article 2(2) thereof to apply it to all victims of domestic violence 
(i.e. human beings  who may also be male), although particular attention is again to be 
paid  to  violence  against  women.  The  purposes  of  the  Convention  are  clearly  outlined  in 
Article  1,  namely:  а)  to  protect  women  against  all  forms  of  violence  (physical  and 
psychological)  and,  in  this  regard,  to  prevent,  prosecute  and  eliminate  violence  against 
women  and  domestic  violence;  b)  to  contribute  to  the  elimination  of  all  forms  of 

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discrimination against women and promote substantive equality between women and men; 
c) to design a comprehensive framework, policies and measures for the protection of and 
assistance to all victims of violence; d) to promote international co‐operation with a view 
to eliminating violence against women and domestic violence; and e) to provide support 
and  assistance  to  organisations  and  law  enforcement  agencies  to  ensure  effective  co‐
operation with a view to adopting an integrated approach to eliminating violence against 
women and domestic violence.  

The purposes and scope of the Convention stated are not only compatible with the spirit 
and letter of the Constitution of the Republic of Bulgaria (the Constitution) but also in full 
conformity  with  the  guiding  principles  and  ad  hoc  provisions  contained  therein,  which 
condemn any unwarranted violence against anyone. Beginning with the Preamble of the 
Basic Law, its creators pledge their loyalty to such universal human values as humanism, 
equality, tolerance, liberty, dignity and security of the individual. The State has explicitly 
committed to protecting human life (Article 28), to combating the various forms of torture, 
cruel, inhuman or degrading treatment (Article 29), as well as to safeguarding the right to 
personal freedom and inviolability (Article 30). Even the right to express an opinion and 
publicise it is limited if used for incitement of violence against anyone (Article 39(2)).  

The  term  ‘sex’  is  used  only  in  Article  6(2)  of  the  Constitution.  It  does  not  have  a  legal 
definition, therefore its meaning should be derived from the common Bulgarian language. 
According to it, sex (also called biological sex, physiological sex) is a concept in biology 
according to which a group of individuals of a  given  species which has the potential for 
sexual reproduction are distinguished by their specialisation in the production of a certain 
type  of  reproductive  cells.  With  humans,  along  with  biological  sex,  the  term  ‘gender 
identity’  also  exists  and  is  used  in  sexology,  psychology  and  sociology.  Gender  identity 
corresponds to the way one understands and perceives one's gender (‘psychological sex’) 
as one of the four elements of sexuality. It is different from ‘social gender’ – gender-based 
socially constructed characteristics and behaviours related to ‘masculinity’ and ‘femininity.’ 
In the modern Bulgarian language the term ‘пол’ (‘sex’) conveys all these meanings.  

The  provision  of  Article  6(2)  of  the  Constitution  includes  the  term  ‘sex’  as  one  of  the 
protected  elements  on  the  grounds  of  which  there  can  be  no  restrictions  of  rights  or 
enjoyment of privileges. This norm is a specific projection of the freedom of people by birth 
and their equality in dignity and rights proclaimed in the preceding paragraph. The Basic 
Law recognises the division of people by gender without explicitly separating the group of 
individuals who are in specific borderline states more often conditioned by biological factors 
(genetic and hormonal) and less often by the social environment (family, friendships, etc.) 
which may objectively hinder or exclude the possibility of performing the natural human 
reproductive  function.  The  constitutional  provisions  of  Article  46(1)  on  matrimony  and 
Article  47(2)  on  the  special  protection  that  the  State  owes  to  mothers  lead  to  this 
conclusion.  

What is more, the representatives of sexual minorities have special protection stemming 
from  the  general  constitutional  principles  of  respect  for  human  dignity,  inviolability, 
equality before the law and prohibition of discrimination on social grounds. The provision 
of Article 4(1) of the Protection against Discrimination Act treats the relevant public group 
as vulnerable and exposed to a higher risk and, therefore, expressly prohibits any direct 
or indirect discrimination based on differences not only of sex but also of sexual orientation. 
With regard to non-discrimination, the binding law of the European Union also recognises 
the ground ‘genetic features,’ which is undoubtedly related to the biology of the human 
being  at  birth  (see  Article  21  of  the  Charter  of  Fundamental  Rights  of  the  European 
Union).         

The  critics  of  the  Convention  argue  that  its  ambiguity  allows  for  violation  of  the  above 
principles of the Basic Law of Bulgaria. We definitely cannot agree with this, because none 
of the Convention’s clauses opens the possibility for the establishment of a ‘third gender’ 

93 

 
 
 
 
 
or  binds  the  State  with  a  commitment  to  legitimise  non-marital  partnerships,  which 
objectively exist mainly on a heterosexual basis, rather than on a homosexual basis, and 
to equate them with matrimony.  
As with the Constitution, the Convention does not define the terms ‘man’ and ‘woman’ as 
it  is  founded  on  the  presumption  that  human  beings  can  only  be  of  two  biologically 
determined  sexes  –  male  and  female.  Similarly,  it  recognises  civil  marriage  as  a  union 
between  two  ‘spouses’  –  a  man  and  a  woman.  At  the  same  time,  it  clearly  and 
unambiguously distinguishes it from ‘partnership.’ The normative regulation of the various 
non-marital  partnerships,  which  objectively  exist,  as  we  already  noted,  mainly  on  a 
heterosexual  basis,  rather  than  on  a  homosexual  basis,  is  granted  explicitly  to  national 
law,  i.e.  to  the  discretion  of  the  ratifying  country  (for  example,  see  Article  3(b),  Article 
36(3),  Article  46(a)  and  Article  59(1)  of  the  Convention).  Therefore,  it  is  the  sovereign 
right  of  each  State  to  decide  whether  to  institutionalise  them  or  not.  In  this  regard,  no 
binding obligation arises out of the multilateral international instrument.  

It is not surprising that Article 9 of the Convention prescribes state support only for such 
civil society and non-governmental structures that aim to combat violence against women. 
The organisations whose goals are limited to combating domestic violence are not explicitly 
included. The obvious intention of the contracting Parties was to dispel the suspicions that, 
under the guise of combating domestic violence, the international treaty could also be used 
as a tool promoting non-traditional partnerships.  

During the debate on the ratification of the Convention, the meaning of the definition under 
Article 3(c) of the Convention was raised as the main issue. 

The  definition  under  Article  3(c)  of  the  Convention  cannot  be  assessed  separately  as 
incompatible with the Constitution without said definition being linked to its use in specific 
other  provisions  of  the  international  treaty  analysed.  Therefore,  in  this  case,  the 
constitutional  review  had  to  focus  on  the  question  of  what  obligations  arise  for  the 
contracting Parties and to assess on this basis whether this commitment is compatible with 
the Basic Law of Bulgaria. The judgment rendered, however, adopts a different approach 
and the majority's conclusion of unconstitutionality is based mainly on an inaccurate and 
even perverse understanding of the actual meaning of Article 3(c) of the Convention.  

The Convention was signed in the two official languages of the Council of Europe, English 
and French; therefore, minimum language skills are required to establish its legal effect 
for  the  Republic  of  Bulgaria.  The  thesis  of  unconstitutionality  is  based  mainly  on  an 
interpretation of the provision of Article 3(c) of the Convention, which, as we already noted, 
is nothing more than a definition of the term ‘gender’ in the English text and ‘genre’ in the 
French one, as it should be understood within the meaning of the international treaty with 
a view to its uniform and correct application by the contracting Parties. Separately, the 
two languages also use a word that is much more similar to the narrow understanding of 
‘gender’  as  belonging  to  one  of  two  biologically  determined  groups  of  human  beings, 
namely  ‘sex’  in  English  and,  respectively,  ‘sexe’  in  French.  At  the  same  time,  even  a 
superficial reference in foreign language dictionaries indicates that there are a number of 
other  translational  meanings  of  ‘gender’,  respectively  ‘genre’,  such  as  ‘род’  ('gender  in 
grammar') in translation from English, as well as ‘сорт’ (‘sort’), ‘категория’ (‘category’), 
‘тип’ (‘type’), ‘вид’ (‘kind’) in translation from French. Therefore, in this case, the purely 
linguistic approach is futile, and thus cannot be decisive for achieving a precise interpretive 
result. To the legal analyst, it is not important what the translation means, but what is the 
particular meaning of the respective term used solely to achieve its purpose, i.e. for the 
purpose of the Convention itself, as explicitly stated at the beginning of Article 3 therein. 

According  to  the  definition  of  Article  3(c),  the  term  ‘gender’  (‘genre’)  in  the  Convention 
means: ‘socially constructed roles, behaviours, activities and attributes that a given society 
considers appropriate for women and men.’ On the one hand, the very definition clearly 
and unambiguously recognises the existence of the two sexes in biological terms  – male 

94 

 
 
 
 
 
and female, and in this respect it is in full harmony with the Bulgarian Basic Law. On the 
other hand, it recognises that, in view of the specifics of traditions and understanding of 
morality, in the course of their historical development individual societies perceived human 
actions as typical, inherent only to women or accordingly – only to men. This perception 
is dynamic and changes over time – for example, 60 to 70 years ago, Bulgarian society 
attributed smoking and wearing trousers to men, and 30 to 40 years ago, practising sports 
such as wrestling, boxing and weightlifting was perceived the same way. The provision of 
Article  3(c)  does  not  hint  to  any  de  facto  differentiation,  let  alone  to  legalisation  of  a 
biologically undetermined ‘third gender.’ As to the assumed possibility therein of a different 
treatment in different societies, including in Bulgarian society, of a certain type of human 
behaviour, it would be more than absurd for an undeniable and undisputable truth to serve 
as a basis for establishing unconstitutionality.  

Indeed, there may be incompatibility with the Constitution in the specific use of the term, 
as  defined  in  Article  3(c)  therein,  in  the  other  norms  of  the  Convention.  In  our  view, 
however, all cases serve the idea of combating violence alone (see Article 2(2), Article 6, 
Article 18(3), Article 60, etc.). Nowhere in  the international treaty analysed can we find 
any  approval  or  encouragement  of  such  actions  by  the  representatives  of  one  sex  that 
society deems inherent to the opposite sex, let alone any imposition of such an obligation 
on  the  contracting  Parties  to  promote  such  behaviour.  The  only  purpose  is  to  prevent 
violence  towards  certain  individuals  simply  because  they  act  in  a  manner  perceived  by 
most  members  of  society  as  not  inherent  to  their  biological  sex.  In  civilized  societies, 
humiliation through the use of psychological and physical violence cannot be justified by 
established  habits,  prejudices,  traditions  or  other  social  practices  based  on  women's 
inequality  with  respect  to  men  (in  this  regard,  see  Article  12  of  the  Convention).  While 
unappreciated by the  constitutional judges’ majority, this is the core  of the Convention, 
which is in full conformity with the Constitution of the Republic of Bulgaria, which condemns 
any unwarranted and disproportionate violence even against the perpetrators of the most 
serious offenses.  

In  their  statements,  the  opponents  of  the  Convention  maintain  that,  by  prescribing  the 
Parties the general obligation to take  

‘...the necessary measures to promote changes in the social and cultural patterns of 
behaviour  of  women  and  men  with  a  view  to  eradicating  prejudices,  customs, 
traditions  and  all  other  practices  which  are  based  on  the  idea  of  the  inferiority  of 
women or on stereotyped roles for women and men...,’  

the  provision  of  Article  12(1)  of  the  Convention  is  incompatible  with  the  Basic  Law  of 
Bulgaria, in particular Article 32(1) and Article 47(1) and (2) of the Constitution. The focus 
in  this  argument  is  placed  on  the  obviously  negative  assessment  that  the  international 
treaty gives to the idea of unconditional and uncritical consideration and imposition in life 
of,  and  subordination  to,  the  temporarily  predominant  stereotypes  in  the  public 
consciousness about what role in life has been assigned separately to men and women. It 
must be emphasised immediately that the disputed provision follows almost literally the 
version of Article 5(b) of the United Nations Convention on the Elimination of All Forms of 
Discrimination Against Women of 1979 (ratified and promulgated in State Gazette No 76 
of 1981, in force for Bulgaria as of 10.03.1982, full text promulgated in State Gazette No 
17 of 2010), by which the States Parties undertook to  

‘take all appropriate measures to modify the social and cultural patterns of conduct 
of  men  and  women,  with  a  view  to  achieving  the  elimination  of  prejudices  and 
customary and all other practices which are based on the idea on stereotyped roles 
for men and women.’  

The  vast  majority  of  the  countries  that  are  members  of  the  most  prestigious  and 
widespread global international organisation have signed and ratified the 1979 document. 

95 

 
 
 
 
 
 
Among them are the European countries, including the Republic of Bulgaria. Therefore, the 
hypothetical  acceptance  of  the  argument  put  forward  in  some  of  the  statements,  which 
suggest that the criticised Article 12(1) of the Convention is incompatible with the national 
Constitution, will result in the denial of universally adopted values and, respectively – in 
the isolation of the country by the international community.  

According to social psychology, ‘stereotype’ means the generalised notion of the distinctive 
traits of people in a particular social group whereby one assumes that each individual in 
the group inevitably bears the common characteristic even if that is not really the case. 
Such clichéd generalisation can sometimes be useful in making quick judgment calls, but 
is harmful when used arbitrarily with regard to the individual.  

The Convention does not deny in any way the right of the individual to have his/her own 
opinion, nor the possibility of a certain opinion in any given society prevailing on the matter 
of what the behaviour of women and, respectively, of men should be. On the other hand, 
however,  the  Convention  has  every  reason  to  disapprove  of  narrow-mindedness  as  an 
excuse for violence and discrimination. In this sense, the comparison of the ‘stereotyped 
roles for women and men’ can by no means be considered in isolation from the purpose 
and scope of the Convention as laid down in the fundamental norms of Article 1 and Article 
2  therein.  Indeed,  parents  are  free  to  bring  up  their  own  children,  but  it  is  absolutely 
unacceptable for society to use this upbringing to promote violence against those who are 
different from them. The correctional intervention of the State through the system of public 
education  is  required  in  such  cases.  It  is  particularly  important  to  emphasise  that  the 
approach prescribed by the Convention is limited to ‘promoting’ changes in public thinking, 
i.e. it excludes coercion as a means of achieving this purpose. Therefore, it is completely 
unjustified to claim that the implementation of Article 12(1) of the Convention would lead 
to  constitutionally  illegitimate  interference  with  citizens'  privacy.  The  argument  that  the 
Convention, when speaking about the specific roles of women and men, does not refer to 
the specifics of human behaviour, but rather to the biological purpose of a man to create 
and of a woman – to give birth, is devoid of any legal grounds and even more absurd. Like 
any regulatory act, the Convention regulates public relations without making any claims 
or  having  the  power  to  interfere  with  the  laws  of  nature.  Not  only  does  it  not  deny  the 
right of parents to raise and bring up their own children (Article 47(1) of the Constitution) 
or  the  protection  of  the  mother  due  on  the  part  of  the  State  (Article  47(2)  of  the 
Constitution);  it  creates  conditions  for  the  implementation  of  the  constitutional 
prescriptions in public practice. 

It  is  unreasonable  to  fear  that  fulfilling  the  commitment  arising  from  Article  14  of  the 
Convention  to  organise  educational  programmes  aimed  at  promoting  tolerance,  mutual 
respect and non-violent methods of solving interpersonal conflicts, including the study of 
any behaviour outside the established stereotypes, may undermine the traditional morals 
of  the  Bulgarian  people,  the  foundations  of  matrimony  and  family.  Well-planned  public 
education is always more beneficial to the youth than the ‘lessons’ they learn on the street. 
On the other hand, commitment made does not in any way affect the sovereign right of 
the State to introduce any education it sees fit. In this case, the study of the objectively 
existing phenomenon is not bound by an obligation to create a positive attitude towards 
all forms of unconventional behaviour through education. For example, if we assume that 
homosexuality is a serious deviation from the typical innate behaviour of every sex and is 
deemed  inappropriate  by  society,  the  Convention  does  not  create  any  legal  obstacle  to 
educational programmes evaluating negatively any actions dictated solely by social factors, 
attention-seeking or self-interests.  

The majority's judgment on the unconstitutionality of the Convention is based on a conflict 
with Article 6(2) (gender equality) and Article 46(1) (civil marriage). It also refers to the 
general  principle  of  the  rule  of  law  under  Article  4(1)  of  the  Constitution,  although  the 
considerations set out therein are in conflict with this principle because they do not meet 

96 

 
 
 
 
the requirements of  objectivity and clarity as they contain a number of ambiguities and 
contradictions.  

Before the beginning of the substantive legal analysis in the reasoning of the act decreed 
by  the  Constitutional  Court,  it  is  expressly  maintained  that  the  assessment  of 
constitutionality ‘...should be made on the basis of the Bulgarian translation of the text of 
the  Convention  presented  in  the  case  by  the  Council  of  Ministers  of  the  Republic  of 
Bulgaria...’.  Afterwards,  however,  the  majority  deviated  from  the  approach  they 
themselves  declared  a  principled  starting  point.  For  example,  contrary  to  the  intention 
declared, they explicitly point out a number of provisions of the Convention which include 
in their contents the definition under Article 3(c) by quoting excerpts in English, although 
the  French  version  has  been  completely  equivalent  to  it  as  of  the  very  signing  of  the 
international treaty. In our view, this obvious inconsistency is not accidental. If indeed only 
the Bulgarian translation was used, the meaning of the term ‘gender’ as laid down in the 
Convention  would  have  been  limited  to  the  public  opinion  on  the  matter  of  what  roles, 
manifestations, acts, actions, etc. are individually inherent to men and women. It would 
have been quite clear that the term concerns the external public assessment of a certain 
type  of behaviour that not only does not deny the biological nature of people, but does 
quite the opposite – it stems from it. However, it would be difficult, even impossible, for 
the majority to link the constitutional review to external issues that are irrelevant to the 
subject matter of the case, such as gender identity in conformity with the subjective will 
of  the  individual  (i.e.  self-identification),  the  actions  of  the  international  community  to 
protect  persons  who  have  unconventional  sexual  orientation  or  by  nature  are  in  a 
borderline state in terms of their sexual traits, the complex bio-ethical issues of the change 
in sexual characteristics through medical intervention, etc.  

The  motivation  of  the  judgment  rendered  deliberately  contain  foreign  language 
terminology  so as to draw attention to publications available primarily in English, which 
cover  the  anti-discrimination  policy  of  the  Council  of  Europe  policy  with  regard  to  the 
measures  against  discrimination  in  the  case  of  unconventional  sexual  orientation  and 
biologically-determined  gender uncertainty, as  well as the  so-called ‘gender ideology’ in 
relation  to  the  idea  of  gender  identity  (i.e.  self-identification)  maintained  by  individual 
representatives. Thus, instead of the constitutional review focusing on the true meaning 
of  the  Convention,  the  reader  is  being  convinced  that  the  international  treaty  also  has 
another  deliberately  concealed  meaning  and  profoundly  conspiratorial  purposes  that  lie 
beyond its stated purpose of combating violence against social groups at higher risk. In 
our view, however, any considerations based on politics or ideology go beyond the subject 
matter of the legal analysis due in this case. It is disturbing that the Constitutional Court 
is taking on this unsuitable role of a political and an ideological judge. We also ask whether 
the judgment rendered results in unconstitutionality and respective non-conformity on the 
part  of  the  Bulgarian  state  with  a  certain  category  of  acts  of  the  first  and  largest 
intergovernmental human rights organisation of democratic Europe.  

The judgment rendered by the majority’s  votes uses the phrase  ‘социален пол’ (‘social 
gender’) with an obvious negative connotation. We do not accept such an approach based 
on a preconceived public attitude because it is incompatible with the fundamental principles 
of law. The legal term ‘gender’ cannot have any meaning other than its social one because 
the law itself regulates only public (social) relations, but remains powerless before nature. 
This applies to all cases where legal meaning is given to the distinction between human 
beings on the basis of sex, including where the main biology factor relates to the public 
opinion,  as  is  done  in  the  Convention,  or  to  the  personal  self-esteem  to  which  the 
international treaty has no relevance.  

Even during the most conscientious reading of the motives of the judgment rendered, one 
cannot find any clear and unambiguous finding stating that any specific provision of the 
Convention is incompatible with a given principle or a prescription of the Constitution of 
the  Republic  of  Bulgaria.  There  is  only  one  conclusion.  The  majority  has  accepted  that 

97 

 
 
 
 
Article 4(3) of the Convention is counter to the rule of law for the following reasons: first, 
because the absence of an explicit definition of the term ‘gender identity’ (in the motives, 
the quotation is supplemented by an excerpt from the English and the French texts) will 
lead to insurmountable difficulties in the implementation of the international treaty, and 
second,  because  it  requires  the  Bulgarian  State  to  establish  ‘...procedures  ensuring  the 
legal recognition of genders other than the biological ones...’. In our view, both of these 
arguments are unfounded. As we stated above, the term ‘gender’, within the meaning and 
for the purposes of the Convention, is defined very clearly and unambiguously in Article 
3(c) therein. It not only does not deny the  division of people into men and women, but 
quite  the  contrary  –  explicitly  recognises  it.  Without  denying  the  biological  nature  of 
people, the definition is based on the public assessment, albeit dynamic in time, of male 
and female  roles, manifestations, actions, behaviours,  etc. It is about  a certain truth,  a 
certain  phenomenon  that  has  always  been  a  characteristic  element  of  the  Bulgarian 
national mentality. Article 4(3) of the Convention does not entail an obligation on the part 
of the State to legally recognise a new gender other than male and female, but rather its 
obligation to combat the various forms of violence against women and domestic violence, 
and to cooperate with the international community in this regard.  

By misinterpreting, in our view, the constitutional concept of gender  as based solely on 
the biological differences between people and by referring to the rule of law, the motives 
of the judgment, even though not very clearly and categorically, raise the question of the 
incompatibility  of  the  Convention  with  the  constitutional  definition  of  civil  marriage. 
Indeed, Article 46(1) of the Constitution defines marriage as a voluntary union between a 
man  and  a  woman,  so  in  this  respect,  the  gender  distinction  (de  lege  lata)  is 
heteronormative. Yet, as we have already pointed out, no text in the Convention obliges 
the Republic of Bulgaria to introduce homosexual or any other type of marriage, which is 
why there is also no unconstitutionality in this respect. 

In view of the actual meaning and contents of the clauses of the Convention (in particular 
the  definition  under  Article  3(c)),  the  reasoning  of  the  majority  based  on  a  term  newly 
introduced by them in the Bulgarian language, ‘полова бинарност’ (‘gender binary’), as 
the  foundation  on  which  human  society  is  traditionally  built  and,  in  this  regard,  their 
argument that ‘...biological sex is determined at birth and is in the sex for the purposes of 
civil  matters...’  are  irrelevant  to  this  particular  constitutional  review.  It  is  troubling  that 
the  Constitutional  Court's  motives  could  also  be  used  as  guiding  principles  beyond  the 
subject  matter  of  this  particular  case.  Therefore,  in  the  absence  of  a  constitutional 
definition,  we  disagree  with  the  narrow-minded  and  scholastic  understanding  of  gender 
distinctions  as  based  solely  on  the  externally  expressed  primary  and  secondary  sexual 
characteristics. Like their counterparts all over the world, people in Bulgaria are also born 
with undetermined, unclear sexual identity, and are not responsible for what nature has 
allotted to them. In relation to this objective reality, the questions of whether such people 
are  subject  to  protection  against  gender-based  discrimination,  which  gender  should  be 
assigned to them and who has the final word on this are indeed relevant. This issue is too 
complex to be solved by two or three isolated and very superficial conclusions.  

In connection with the above, the judgment raises more questions that we hope will remain 
rhetorical.  First,  whether  the  majority  would  agree  that  biologically  objectively  existing 
individuals  with  unclear  or  mixed  sexual  characteristics  (‘intersexual’  –  hermaphrodites, 
eunuchs), unlike those included in the statistically predominant majority of individuals with 
clearly determined sexuality, are not subject to protection against discrimination on the 
grounds  of  ‘sex.’  Second,  whether  the  same  applies  to  the  persons  whose  social  or 
psychological profile is different from that of the majority of the population. There cannot 
be correct answers to these questions without taking into account mere humanity, which 
is  referred  to  in  the  Preamble  of  the  Constitution  with  the  loanword  ‘хуманизъм’ 
(‘humanism’)  to  designate  one  of  the  highest  constitutional  values.  For  us,  there  is  no 
doubt  that  all  the  above  differences  fall  under  the  protection  of  Article  6(2)  of  the 
Constitution. 

98 

 
 
 
From a legal  standpoint, the Convention, especially its Bulgarian translation, is far  from 
perfect.  The  constitutional  term  sex,  however,  is  contained  only  in  Article  6(2)  of  the 
Constitution and as a generic term includes not only biological sex, but psychological and 
social gender, solely as grounds for non-discrimination. For the same purpose and exactly 
in  the  same  spectrum,  the  term  is  also  used  in  the  Convention  now  subjected  to 
constitutional review, which is why there is no contradiction between its provisions and the 
constitutional  principle  of  the  rule  of  law.  This  is  why  the  majority's  argument  for  non-
conformity with the rule of law is unfounded.  

We cannot gloss over the question of whether the majority would give up their conclusion 
on unconstitutionality if another word or phrase had been used in the Bulgarian translation 
instead of the word ‘пол’ (‘sex’), which is also contained in Article 6(1) of the Constitution. 
It is hard to swallow that the judgment of the Constitutional Court, the highest protector 
of the rights and legitimate interests of citizens, can be based mainly on the translation of 
one legal term established in two foreign languages, instead of on an impartial, objective 
and accurate substantive analysis of the content of the multilateral international treaty.  

The  public  debate  on  the  ratification  of  the  Convention  on  preventing  and  combating 
violence  against  women  and  domestic  violence  evolved  into  a  dishonest,  manipulative 
political project aimed at attracting voters against the backdrop of ostentatious protection 
of the traditional morals and national traditions of the  Bulgarian people. Initially, it was 
maintained  that  the  Convention  was  unnecessary  and  redundant,  then  it  was  labelled 
harmful and dangerous because it was said to promote the notion of a ‘third gender.’ A 
referendum was even proposed, which undoubtedly would have gone under the slogan of 
whether  the  already  confused  voter  is  ‘for’  or  ‘against’  homosexuality,  same-sex 
marriages,  Pride  parades,  etc.  All  of  this  now  culminates  in  this  declaration  of 
unconstitutionality, i.e. people should feel safe about their future. In our view, however, 
this safety may be deceptive and transient.  

We  recognise  that  the  basic  natural  purpose  of  people  is  to  ensure  the  survival  of  the 
human species and that reproduction should take place in the contact between men and 
women.  In  principle,  we  do  not  approve  the  vulgar  and  ostentatious  display  of  one’s 
intimate  sexual  life  before  a  wide  audience.  However,  the  Convention  does  not  address 
these issues at all. Therefore, it cannot be classified as either conservative or liberal. Its 
focus is different, namely – combating violence. At the same time, we cannot refrain from 
stating that the defenders of strictly straight sexual behaviour of men and women seem to 
avoid the answer to such an extremely relevant issue for Bulgarian society as the severe 
demographic crisis. For information only, according to UN statistics for 2017, Bulgaria is 
at  the  unenviable  210th  place  in  the  world  by  birth  rate,  with  all  countries  which  have 
institutionalised same-sex partnerships registering a higher birth rate, the only exception 
being Germany. 

Even in conservative, clerical and totalitarian regimes, there are always individuals of one 
biological sex whose acts extend to homosexuality in their final form, and which society 
has  deemed  typical  of  the  opposite  sex.  Such  individuals  are  usually  referred  to  by  the 
Bulgarian people as ‘женчовци’ (‘sissies’) and respectively – ‘мъжкарани’ (‘tomboys’). Let 
us  remember  that  among  them  there  were  popular  actors  and  singers,  skilled  doctors, 
renowned  lawyers,  elite  athletes,  etc.  For  better  or  worse,  this  phenomenon  has 
accompanied human society since the dawn of its existence. Any attempts to prohibit it by 
law have always failed. On the other hand, of course, in no case can people be forced to 
perceive it as a good thing, or something positive, but the Convention also does not do 
this; it merely states an objective reality, i.e. a truth, without prescribing any measures 
for its support and encouragement by the State. The international treaty defends only the 
view that any reaction in the form of physical and psychological violence against human 
beings is absolutely unacceptable in societies that deem themselves civilized. 

99 

 
 
 
 
  
The  Constitutional  Court's  judgment  ‘serves’  politicians  of  all  colours  –  it  prevents  a 
possible  conflict  in  the  ruling  coalition  and  coincides  with  the  view  of  most  of  the 
parliamentary  and  extra-parliamentary  opposition.  It  also  conforms  to  current  public 
attitudes. Time will, however, be the judge of whether it embodies the impartiality, civil 
courage  and  valour  that  are  inherent  in  judicial  independence.  We  doubt  that  any 
constitutional  jurisdiction  in  another  democratic  European  State  would  uphold  that  the 
truth  may  be  incompatible  with  the  Basic  Law  of  a  country,  that  the  combat  against 
different  forms  of  violence  can  be  opposed  to  constitutional  requirements.  Perhaps  the 
Convention on preventing and combating violence against women and domestic violence 
is imperfect, perhaps it will not be as effective an international instrument as its creators 
expected,  but  the  opposition  of  Bulgarian  politicians  and  state  institutions  rests  on  a 
negative symbolism that clearly points to a departure from the ideal of a ‘pure and holy 
republic.’ We can only guess what the real reasons for refusing to follow the majority of 
civilized and democratic European countries in seeking a cure against violence as the most 
severe form of humiliation of the human dignity are. In this regard, we note only as an 
example  that  even  in  the  United  Nations  General  Assembly  resolution  of  10  June  2000 
concerning further actions and initiatives to implement the Beijing Declaration and Platform 
for Action, the English word ‘gender’ is used multiple times, and this word is now being 
used solely as tool for instilling fear in Bulgarian society for political gains, but without any 
reason. It is a shame that this self-isolation of Bulgaria from the international community 
stemming from the Constitutional Court's judgment should happen at a time when brutal 
aggression  has  become  part  of  our  everyday  lives  at  home,  in  the  streets,  in  public 
transport, at stadiums, in schools, in parks, etc. 

Judge: Rumen Nenkov  
Judge: Georgi Angelov 

Dissenting Opinion 

of Judge Konstantin Penchev under Constitutional Case No 3/2018  

My opinion is that the Council of Europe Convention on preventing and combating violence 
against women and domestic violence, done on 11 May 2011 in Istanbul, and signed by 
the Republic of Bulgaria on 21 April 2016, conforms to the Constitution of the Republic of 
Bulgaria.  

1. 

1.2 

In order to rule on the non-conformity of the Convention with the Constitution, the 
Constitutional Court has reasoned the following:  
1.1  The Court has upheld that the provisions of Article 3(c) and Article 4(3) of the 
Convention contradict Article 6(2) and Article 4(1) of the Constitution. Since no 
reservations may be made in respect of these provisions (Article 78), they make 
the entire Convention incompatible with the Constitution.  
It is recognised that the provisions of Article 3(c) and Article 4(3) define gender 
as  both  a  biological  category  and  a  social  construct  determined  by  the 
subjective perceptions and notions of a given society about the role of men and 
women. This dual understanding of the term gender contradicts Article 6(2) of 
the Constitution, its provision referring to biological and not social gender. The 
interpretative decision No 14 of 1992 is also quoted; according to it, gender is 
excluded  from  the  group  of  traits  that  may  be  acquired  or  changed  in  the 
process of social realisation of the citizens in society.  
It is further acknowledged that the Convention also contradicts the rule of law 
established in the Preamble and Article 4(1) of the Constitution. The rule of law 
in  the  formal  sense  requires  the  meaning  of  legal  terms  to  be  clear  and 
unambiguous.  By  defining  the  term  gender  as  both  a  biological  and  a  social 
construct, the Convention makes it impossible to adopt any laws implementing 
the Convention and ultimately leads to instability of the legal system.  

1.3 

2. 

I do not share these legal conclusions on the following grounds.  

100 

 
 
 
 
 
2.1  Article 3(c) defines the term gender only for the purposes of the Convention as 
‘socially  constructed  roles,  behaviours,  activities  and  attributes  that  a  given 
society  considers  appropriate  for  women  and  men.’  The  concept  of  gender's 
social  roles  is  already  embedded  in  our  legislation.  Paragraph  1(1)  of  the 
Additional Provision of the Gender Equality Act states that ‘men and women are 
free to develop their own abilities and to make choices without the limitations 
of the social role of their sex.’ Article 2(5) of the same Act refers to ‘overcoming 
gender  stereotypes’  as  a  principle  underpinning  the  state’s  policy  on  gender 
equality.  
It is apparent that the purpose of the Convention and the Gender Equality Act 
is to protect the freedom of any individual, male or female, to define his/her 
behaviour  regardless  of  the  stereotypes  concerning  male  and  female  social 
roles established at a given time and in a particular society, without questioning 
the understanding of the biological essence of gender.  

2.2 

2.3  The provision of Article 4(3) of the Convention also does not create a new term 
for  gender  other  than  the  biological  one.  According  to  this  provision,  the 
measures to protect the rights of victims provided for in the Convention must 
be  implemented  without  discrimination  on  any  of  the  grounds  listed.  The 
concerns contained in the motives of the judgment are unjustified; they state 
that  concepts  such  as  ‘gender’  and  ‘gender  identity’  introduce  new  gender 
criteria  other than biological ones, which not  only violates Article 6(2) of the 
Constitution, but would lead to legal chaos inconsistent with the rule of law.  

2.4  The controversial text also lists grounds other than the ones mentioned above 
on  which  discrimination  is  inadmissible;  these  include  age,  state  of  health, 
disability, sexual orientation. These grounds, as well as the grounds of ‘gender’ 
and  ‘gender  identity’,  are  not  present  in  the  provision  of  Article  6(2)  of  the 
Constitution. Some of them – age, state of health, disability, sexual orientation 
– are also used in the current legislation in force: Article 4(1) of the Protection 
against  Discrimination  Act,  Article  15  of  the  Combating  Trafficking  in  Human 
Beings Act, Article 3 of the Social Assistance Act, Article 2 of the Employment 
Promotion Act, Article 75(5)(2) of the Radio and Television Act, Article 8(3) of 
the Labour Code, Article 231(1) of the Social Insurance Code, etc.  

include 

the  physical,  psychological  and 

2.5  These grounds fall within the general grounds of ‘personal status,’ as enshrined 
in  Article  6(2)  of  the  Constitution,  and  enrich  its  meaning.  The  grounds  of 
personal  status 
intellectual 
characteristics  of  the  individual,  as  well  as  any  other  significant,  lasting  and 
distinctive  personality  trait.  This  ground  has  no  unambiguous  objectively 
defined  meaning.  Disability,  age,  state  of  health  and  sexual  orientation  are 
traits  of  one’s  personal  status.  It  is  apparent  that  the  meaning  of  personal 
status  is  subject  to  supplementation  and  enrichment  in  the  course  of  social 
development.  I  believe  that  gender  identity,  as  part  of  the  individual's 
psychological characteristics, is also a trait of personal status.  

2.6  Therefore, the provision of Article 4(3)  of the  Convention does not introduce 
any other meaning to the term 'gender' other than the biological one. It points 
out new personality traits that are included in the grounds of ‘personal status’, 
which  excludes  discrimination  in  the  implementation  of  protective  measures 
under the Convention.  

2.7  On  these  grounds,  I  believe  that  the  Council  of  Europe  Convention  on 
preventing and combating violence against women and domestic violence, done 
on 11 May 2011 in Istanbul, and signed by the Republic of Bulgaria on 21 April 
2016, conforms to the Constitution of the Republic of Bulgaria.  

The existing negative emotional attitudes in society towards the Convention should 
be taken into account when making the political decision as to whether to ratify this 
international  treaty.  Public  opinion,  however,  must  not  influence  the  legal 
assessment of the Convention's conformity with the Constitution.  

3. 

Judge: Konstantin Penchev 

101 

 
 
DISSENTING OPINION 

of Judge Filip Dimitrov under Constitutional Case No 3/2018  

I  disagree  with  the  judgment  on  Constitutional  Case  No  3/2018,  with  the  majority's 
conclusions,  as  well  as  with  the  manner  in  which  they  were  reached,  on  the  following 
grounds:  
The Constitutional Court should consider the request for a declaration of unconstitutionality 
in the following lines:  

1. 

2. 

Is  there  a  text  or  principle  in  the  Bulgarian  Constitution  that  is  contrary  to  the 
purposes, scope or specific provisions of the Convention; 
Are there any other acts forming part of the Bulgarian legal system which conform 
to the contents of the Convention; and  

3.  What is the responsibility assumed by the government, respectively by Parliament, 
that allows establishing whether there are risks of future actions that could jeopardise 
constitutional order. 

By examining the request, without clearly distinguishing these elements, the majority fell 
prey to confusion and, in the context of a particularly raucous political campaign (which 
the  Constitutional  Court  of  course  cannot  ignore  but  must  assess  with  appropriate 
precision), came to the judgment rendered. 

The  Convention  sets  out  its  purposes  and  scope  in  Articles  1  and  2  exclusively  in  the 
framework of violence against women and domestic violence. The fact that this issue has 
been  addressed  in  other  legislative  acts  and  international  treaties  ratified  by  Bulgaria 
(detailed in the judgment) does not override in any way the government's right to sign a 
new  international  treaty  that  establishes  additional  guarantees  for  international 
cooperation in compliance with these norms. (This is exactly what is new in the Convention 
–  a  commitment  to  more  comprehensive  measures  to  ensure  protection  from  violence 
against women and domestic violence. Whether Bulgaria should deny protection of beaten 
women due to poverty, however, is not a constitutional question but rather a question for 
the executive and, to some extent, for the legislature). 

The  majority  chose  as  the  main  argument  in  the  motivation  for  their  judgment,  the 
assumption  that  the  reference  to  gender  in  its  social  dimension  (the  use  of  the  terms 
‘gender’  or  ‘genre’)  expressed  the  ‘notion  that  the  social  dimension  of  gender  is 
independent of the biological one.’ 

Thus,  the  majority,  although  formally  pointing  to  the  inextricable  link  between  the 
biological  and  social  characteristics  of  gender,  in  fact  implicitly  adopted  the  argument 
developed  in  the  president's  statement,  stating  that  gender  (both  as  a  given  and  as 
behaviour)  was  only  determined  biologically  under  the  Bulgarian  Constitution.  This 
argument is completely untenable. Quoting Article 47(2) of the Constitution, the majority 
points  out  the  use  of  ‘the  term  ‘women,’  which  is  undoubtedly  based  on  the  biological 
understanding of the sexes.’ Precisely by virtue of Article 47(2), the protection of women 
is linked to their social role as much as to their biological role. (Furthermore, motherhood 
is  not  necessarily  ‘biological.’)  This  is  precisely  what  the  Convention  means,  not  the 
invention of a ‘non-biological’ gender. This understanding matches the conclusion at the 
end of the motives for this judgment and it is astonishing that the majority has not been 
able to capture this match. 

The  majority  has  paid  too  much  attention  to  translation  efforts  in  connection  with  the 
concept  of  ‘gender’  or  ‘genre’  –  efforts  that  are  completely  redundant  because  the 
translation is only a matter of facilitation and clarification for the ratifying countries. The 
only  texts  relevant  to  the  application  of  the  Convention  (including  as  part  of  national 
legislation) are the English and the French versions, so each term can also be translated 

102 

 
 
 
 
 
  
  
  
descriptively as long as this clarifies its meaning. In languages in which the typical word 
for ‘пол’,  ‘sex’, has a dual meaning, the term ‘gender’  or  ‘genre’ strips the notion of its 
erotic sounding, which the word ‘пол’ achieves successfully in Bulgarian, but in no language 
are these words invested with a ‘non-biological’ meaning. 

The motives for the judgment list exhaustively all cases where the term for sex, loaded 
with its social characteristics (‘gender’ or ‘genre’), is used, and in none of these cases is 
there  any  reference  to  a  third  gender  or  anything  other  than  women  and  men.  On  the 
contrary,  rejecting  violence  against  women,  it  explicitly  mentions  that  there  are  non-
stereotyped gender roles, i.e. there are people whose social behaviour is ‘peculiar’ (i.e. it 
deviates from what is specific to each gender – or ‘genre’ – which remain two). To think 
that a prohibition on violence against them may be unconstitutional is absurd. However, 
this  almost  creates  the  impression  that  in  essence  the  majority's  argument  declares 
unconstitutional, for example, the prohibition to beat transgender people – something that 
also  contradicts  the  constitutional  principles  and  all  anti-discriminatory  and  criminal  law 
provisions in force. 

Another  misinterpretation  by  the  majority  is  related  to  the  term  ‘gender  identity.’  The 
existence of people who deviate from traditional male or female roles in their behaviour 
(and wish to do so) is a fact of life, not a normative fact, and no Constitution or law (even 
Nazi or communist) can determine whether these people exist or not, but only if they can 
be  destroyed  (in  the  case  of  Nazism),  discriminated  against  and  displaced  (under 
Communism)  or  afforded  basic  protection  against  violence  as  provided  for  in  the 
Convention. It is apparent that the public recognition of an existing fact helps, rather than 
hinders, the guaranteeing of this protection. To argue (as in some of the statements) that 
some  ‘Bulgarian  constitutional  identity’  contradicts  the  recognition  of  facts  of  life  is 
ridiculous. To argue that the Constitution prohibits to speak about it because it ‘does not 
lead to the achievement of gender equality, but rather blurs the differences between sexes 
thus  resulting  in  the  principle  of  equality  losing  its  meaning’  is  also  inexplicable.  How 
exactly  this  blurring  of  the  differences  between  sexes  occurs  remains  a  mystery  to  me 
(and perhaps to others with such simple perceptions as mine). This, finally, leads to the 
crowning phrase of the motives for the judgment, stating that ‘if society loses the ability 
to distinguish between a woman and a man, combating violence against women remains 
only  a  formal,  yet  unattainable,  commitment.’  It  turns  out  that  according  to  the 
constitutional legislator, the clarification of the fact that there are lesbians or transvestites 
people means that men and women will become equal. Thank God, nothing in the text of 
the Constitution indicates that the constitutional legislator had such thoughts. 

The turbulent social response in Bulgarian society, albeit instigated by false interpretations 
and instilling false fears, clearly reflects some real concerns related to the possibility of the 
ratification of the Convention  

a)   becoming a means to pave the way to the recognition of same-sex marriage; and  
b)  

to  clear  the  way  for  extravagant  non-governmental  organisations  to  ‘legally  plant’ 
among  the  children  ‘exceedingly  free’  ideas  (such  as  the  self-proclaimed  ‘gender 
ideology’). 

The first concern is unfounded. According to Article 46(1)  of the Bulgarian Constitution, 
matrimony is a union between a man and a woman. Constitutional amendments are made 
only as described in Chapter IX of the Constitution, not through conventions. 

The second concern has its grounds. The fact is that sometimes reasonable classical liberal 
ideas  are  defended  by  narrow-minded  liberal  fanatics  or  extravagant  adventurers  in  a 
manner consistent with their mentality. The Constitutional Court is not supposed to guess 
whether these will rush to Bulgarian schools and whether any government will not allow 
them there – something that it has all the power to stop, and if there is a political will to 

103 

  
  
 
 
  
  
move  in  the  opposite  direction,  it  could  allow  them  with  or  without  the  Convention 
discussed.  
The term ‘gender ideology’ (to which the Bulgarian society was recently introduced) is just 
as popular as the terms ‘ecofascism’ and ‘feminazi’. The common denominator is that all 
three terms may be used by enthusiastic intellectuals, but have no legal value. 

Nevertheless, there is no reason – for fear that a given government will not do its job or 
that  some  parents  are  deemed  incapable  of  bringing  up  their  children  –  to  declare  an 
international convention, which does not contradict any text or principle of the Bulgarian 
Constitution, unconstitutional.  

Judge: Filip Dimitrov 

104 

 
 
  
 
 
 
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