FOURTH SECTION
CASE OF NATIONAL MOVEMENT EKOGLASNOST v. BULGARIA
(Application no. 31678/17)
 
 
JUDGMENT
 
Art 1 P 1 • Peaceful enjoyment of possessions • Environmental association ordered to pay the lawyer’s fees incurred for the legal representation of successful party, a nuclear power plant, in reopening proceedings • Costs due under the “loser pays” rule, not “contributions” as not related to the court system as such, examined under the principle of peaceful enjoyment of possessions instead • Domestic rules for calculating costs applied without sufficient consideration to the specific case circumstances • Individual and excessive burden on the applicant association
 
STRASBOURG
15 December 2020
FINAL
 
15/03/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of National Movement Ekoglasnost v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Tim Eicke, President,
 Yonko Grozev,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Armen Harutyunyan,
 Jolien Schukking,
 Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian association, National Movement Ekoglasnost (“the applicant association”), on 24 April 2017;
the decision to give notice to the Bulgarian Government (“the Government”) of the complaint under Article 1 of Protocol No. 1 to the Convention concerning the allegedly excessive amount of costs that the applicant association was ordered to pay for the respondent party’s legal representation in proceedings for reopening and to declare the remainder of the application inadmissible; and
the parties’ observations;
Having deliberated in private on 20 October and 24 November 2020,
Delivers the following judgment, which was adopted on that last‑mentioned date:
INTRODUCTION
1. The case concerns the question whether an allegedly excessive costs award made against the applicant, an environmental association, for the legal representation of the successful respondent party, a nuclear power plant, in reopening proceedings amounted to unjustified interference with the applicant association’s rights under Article 1 of Protocol No. 1 to the Convention. THE FACTS
2. The applicant association was founded in 1992 and has its registered office in Sofia. It was represented by Mr A. Kashamov, a lawyer practising in Sofia. 3. The Government were represented by their Agent, Ms V. Hristova, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant association’s legal status
5. The applicant association was registered as a non-profit legal person in 1992 in accordance with the Persons and Family Act 1949 (see paragraph 35 below). Its main goals were to work towards the resolution of environmental problems in Bulgaria and to disseminate information about the environment. 6. On 1 January 2001 the Non-Profit Legal Persons Act 2000 came into force (“the 2000 Act”, see paragraph 36 below). It provided that legal entities registered under the previous regime were to preserve their legal status under the new law without the need to apply for new registration. 7. In April 2005 the applicant association sought to be included in the Ministry of Justice’s central register of non-profit legal persons acting for the public benefit. 8. In May 2005, citing the expiry of the three-year statutory time-limit for registration laid down in the 2000 Act (see paragraph 36 below), the Ministry of Justice refused the applicant association’s request for entry in the register. 9. The applicant association remained registered only in the register of non-profit legal persons. Background
10. The Kozloduy Nuclear Power Plant (“the KNPP”) is the only nuclear power plant in Bulgaria. It is a single-member joint-stock company whose shares are wholly owned by the State. 11. The KNPP has six pressurised water reactors. The first four units were shut down between 2002 and 2006 as one of the preconditions for Bulgaria’s accession to the European Union (“the EU”). Units 5 and 6 came into operation in 1987 and 1991 respectively. In 2017 the service life of unit 5 was extended until 2027. In 2019 the operational licence for unit 6 was also extended until 2029. 12. In July 2014, following a request made by the KNPP in the context of an investment proposal to extend the service life of units 5 and 6 of the nuclear power plant, the Minister of the Environment and Water decided that it was not necessary to carry out an environmental impact assessment in connection with the proposal. 13. In August 2014 a non-governmental organisation, the Coalition for Sustainable Development (“the CSD”), sought judicial review of the Minister’s decision before the Supreme Administrative Court (“the SAC”). 14. In February 2015 the applicant association requested leave to join the proceedings as an interested party. 15. On 18 March 2015 a three-judge panel of the SAC declared that request inadmissible. The court noted that according to section 1, subsection 30, of the supplementing provisions of the Environmental Protection Act 2002 (“the EPA”; see paragraph 38 below), the Minister’s decision was an individual administrative act (индивидуален административен акт) and not a general administrative act (общ административен акт). Therefore, no third party could join the proceedings under Article 182 § 3 of the Code of Administrative Procedure 2006, invoked by the claimant (see paragraphs 45-46 below). Instead, the applicant association, which was to be regarded as being among the “members of the public concerned” (засегната общественост) within the meaning of section 1, subsections 24 and 25, of the supplementing provisions of the EPA (see paragraph 40 below), could have lodged an individual judicial review claim within fourteen days from the date of publication of the impugned decision (see paragraph 38 in fine below). The court found that, as that decision had been published on the Ministry’s website on 25 July 2014, at the time the applicant association’s request to intervene was lodged the fourteen-day time-limit for seeking judicial review had already expired. 16. The applicant association did not appeal against that decision. 17. On 28 October 2015 the three-judge panel of the SAC found that the Minister’s decision was lawful and dismissed the legal challenge brought by the CSD. It also ordered the CSD to pay 300 Bulgarian levs (BGN, approximately 150 euros (EUR)) for the Environment and Water Ministry’s legal representation by an in-house lawyer, and BGN 30,000 (approximately EUR 15,000) in costs incurred for the KNPP’s legal representation. 18. The applicant association and the CSD lodged an appeal on points of law with a five-judge panel of the SAC. 19. On 17 March 2016 a five-judge panel of the SAC found the applicant association’s appeal on points of law inadmissible. The court noted that the association had not taken part in the administrative proceedings. It had also failed to bring a separate judicial review claim under the EPA. Likewise, it had not been a party to the proceedings before the first-instance court, since its request to join those proceedings had been dismissed by the court. The applicant association had further failed to challenge the court’s decision of 18 March 2015 (see paragraphs 15-16 above) within the statutory time-limits. It therefore had no right to appeal on points of law against the first-instance judgment. 20. On the merits, the SAC upheld the court’s ruling, fully agreeing with the three-judge panel as to the lawfulness of the Minister’s decision. It also went on to order the CSD to bear the costs incurred for the defendants’ legal representation in the cassation proceedings. It awarded the Ministry BGN 300 (approximately EUR 150) for its legal representation by an in-house lawyer, and awarded BGN 18,000 (approximately EUR 9,000) to the KNPP in respect of lawyer’s fees. Reopening Of THE proceedings
21. On an unspecified date in 2016 the applicant association sought the reopening of the proceedings before a seven-judge panel of the SAC. Relying on Article 239 § 5 of the Code of Administrative Procedure 2006 (see paragraph 47 below), it submitted that its right of access to a court had been breached by the SAC’s refusal to admit its appeal on point of law for examination. 22. On 29 September 2016 the SAC held a hearing in which it heard the parties without collecting new evidence. The applicant association’s lawyer argued that the association had been denied the right to lodge an appeal on points of law and to participate as a party to the proceedings concerning the Minister’s decision not to carry out an environmental impact assessment on extending the service life of the nuclear power plant’s reactors. That matter concerned the general public and the SAC had already accepted that the applicant association could be regarded as a member of the public concerned within the meaning of the EPA (see paragraphs 15 above and 40 below). Consequently, the association had a separate right to participate in the proceedings on points of law. 23. The KNPP’s lawyer pleaded that the applicant association’s request for reopening was inadmissible. She also sought to be awarded the costs for the company’s legal representation in the proceedings for reopening initiated by the applicant association. In reply, the applicant association’s lawyer objected, arguing that the costs claimed were excessive. He pointed out that the subject matter of the proceedings concerned the citizens’ right to a clean and healthy environment and not the price of the nuclear power plant’s reactors. Allowing the costs claim as in main proceedings thus amounted to a direct violation of Article 6 of the Convention. 24. On 24 October 2016 the seven-judge panel of the SAC dismissed the request for reopening. It noted that the applicant association’s request for leave to join the proceedings had been refused by the SAC’s decision of 18 March 2015 (see paragraph 15 above). Since that decision had not been appealed against it had become final. The issue with regard to the applicant association’s participation in the proceedings had thus been finally adjudicated and the ruling was binding on the courts in both the cassation proceedings and the proceedings for reopening. The court went on to state that no breach of the rules of procedure had occurred on the basis of which the applicant association could be considered to have been deprived of its right to take part in the proceedings. 25. The SAC also ordered the applicant association to pay BGN 12,000 (approximately EUR 6,000) of the amount of BGN 24,000 (approximately EUR 12,000) claimed by the KNPP in lawyer’s fees for the reopening proceedings. It ordered the association to pay the minimum remuneration provided for in the Regulation, namely BGN 300 (approximately EUR 150; see paragraph 51 below) for the Ministry’s legal representation by an in‑house lawyer. In determining the amount of the costs, the SAC held:
 “Given the outcome of the case, the costs are to be borne by the claimant and should be awarded in favour of the defendants in accordance with the claims, submitted in a timely manner, in the amount of 300 Bulgarian levs – the minimum remuneration for a lawyer determined under the Regulation adopted pursuant to section 36, subsection 2 of the Bar Act – for the representation of the Ministry of the Environment and Water. The court finds the claimant’s objection to the allegedly excessive amount of the lawyer’s fees paid by the KNPP to be justified in view of the actual factual and legal complexity of the case, and accepts that they [the lawyer’s fees] should be awarded in the amount of 12,000 Bulgarian levs.”
  OTHER REQUESTs for Reopening of the ProceedIngs
26. In two separate sets of proceedings the CSD also sought the reopening of the proceedings on the grounds that newly discovered evidence had emerged which could significantly alter the outcome of the case. The applicant association also took part in those proceedings, supporting the CSD’s requests. 27. Both requests were rejected by a seven-judge panel of the SAC, on 14 July 2017 and 18 December 2017 respectively. In view of the outcome of the proceedings, in the first set of proceedings the SAC ordered the CSD to pay BGN 200 (approximately EUR 100) for the Ministry’s legal representation by an in-house lawyer, and BGN 5,000 (approximately EUR 2,500) of the amount of BGN 24,000 originally claimed by the nuclear power plant in costs for the KNPP’s legal representation. 28. In the second set of proceedings the SAC awarded BGN 200 (approximately EUR 100) for the Ministry’ legal representation by an in-house lawyer, and BGN 2,000 (approximately EUR 1,000) of the amount of BGN 21,000 (approximately EUR 10,500) originally claimed by the nuclear power plant in costs for the KNPP’s legal representation. ENforcement proceedings against the Applicant associAtion
29. Meanwhile, on 27 October 2016, at the request of the KNPP, the SAC issued a writ of execution against the applicant association for an amount of BGN 12,000 (approximately EUR 6,000). 30. In December 2016 enforcement proceedings were opened against the applicant association. A bailiff collected a total sum of approximately BGN 34 (approximately EUR 17). 31. On 26 April 2017 the bailiff scheduled a date for carrying out an inventory of the applicant association’s movable property. 32. On 18 April 2018 the summons officer who was sent to deliver the notice for voluntary compliance recorded on the summons that the debtor association could not be found at its registered address and that the premises were occupied by a State institution. 33. At the time of the latest information from the parties the enforcement proceedings against the applicant association were still pending. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic LAwThe Constitution

34. The relevant provisions of the 1991 Constitution read as follows:
Article 55
“Citizens shall have the right to a healthy and favourable environment corresponding to the established standards and norms. They must preserve the environment.”
Article 120
“1. The courts shall review the lawfulness of the administrative authorities’ acts and decisions. 2. Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”
Registration of associations
35. Before the entry into force of the 2000 Act on 1 January 2001 the formation, registration, organisation, activities and winding-up of non‑profit legal persons such as associations and foundations was regulated by the Persons and Family Act 1949. An association acquired legal personality after its entry in the register kept by the relevant regional court. 36. The 2000 Act (see paragraph 6 above), which superseded parts of the 1949 Persons and Family Act, provided for two categories of associations – those registered for the public benefit and those working for a private interest. Under paragraph 1 of the transitional and concluding provisions of the 2000 Act, non-profit legal persons which were registered under the previous regime retained their legal personality without being required to apply for new registration under the 2000 Act. Non-profit legal persons wishing to be designated as acting for the public benefit, a status which could give some tax advantages, had to submit an application for registration in the central register kept by the Ministry of Justice within three years from the entry into force of the 2000 Act. The status of non‑profit legal person working for the public benefit was to be acquired from the date of registration. 37. If a non-profit legal person carried out activities in breach of the Constitution, the law and morals, it could be wound up by a decision of the regional court with territorial jurisdiction (section 13, subsection 3(b) of the 2002 Act). Proceedings under the Environmental Protection Act 2002
38. At the material time, the provisions of the 2002 EPA provided that an environmental impact assessment was mandatory for all the schemes listed in a schedule to the Act (section 92, point 1). In other cases, an environmental impact assessment could be carried out after the competent authorities assessed the necessity for that (section 93(1)). In particular, in relation to investment proposals and their extension or amendment concerning sites designated by an act of the Council of Ministers as being of national importance, like the KNPP, the 2002 EPA provided that the assessment of the necessity was to be carried out by the Minister for the Environment and Water (section 93(2), point 4, and section 94(1), point 5). The Minister was to decide within one month from the submission of the investment proposal whether or not to carry out an environmental impact assessment. The Minister’s decision was an individual administrative act (paragraph 1, point 30 of the supplementing provisions), which had to be notified to the investor and made public. The persons concerned could seek judicial review before the SAC within fourteen days from notification of the decision (section 99(6)). 39. The right of public participation in decision-making and the right of access to justice in environmental matters are recognised by section 3, subsections 4 and 11 of the EPA. 40. Section 1, subsection 24 of the supplementing provisions defines “members of the public” as one or more natural or legal persons and their associations, organisations or groups established in accordance with the national law. Subsection 25 defines “the members of the public concerned” as the members of the public under subsection 24, including environmental non-governmental organisations established in accordance with the national legislation which are affected or are likely to be affected, or which have an interest in proceedings for the approval of plans, programmes and investment proposals, and in decisions on the issuance or updating of permits under the 2002 EPA or on the conditions laid down in such permits. Costs in judicial review proceedings
41. Article 143 of the Code of Administrative Procedure 2006 (“the 2006 Code”) lays down a general cost-shifting rule in judicial review proceedings, namely that costs follow the event. According to the first paragraph of Article 143, if a court quashes an administrative decision or a public authority’s refusal to issue one, the costs of the litigation – court fees, the fees of one lawyer, and other expenses – must be borne by that authority. If, on the other hand, the court dismisses the claim for judicial review or the party which has brought it withdraws it, that party must bear all costs incurred in relation to the proceedings, including the minimum remuneration for one lawyer, determined in accordance with the regulation adopted under section 36(2) of the Bar Act 2004 (Article 143 § 4). In the latter case, the party in whose favour the administrative decision is given is also entitled to costs (Article 143 § 3). 42. Under Article 144 of the 2006 Code, all matters not specifically dealt with in the part of the Code governing judicial review are governed by the Code of Civil Procedure. 43. Article 78 § 1 of the Code of Civil Procedure 2007 provides that the expenses paid by the claimant – litigation costs and the fees of one lawyer – must be borne by the defendant in proportion to the part of the claim which was upheld. If the lawyer’s fees paid by a party are excessively high having regard to the legal and factual complexity of the case, the court may order the payment of a lower amount in respect of costs at the request of the opposing party, provided that the amount does not fall below the minimum amount set out in the Regulation on the minimum amounts of lawyers’ fees (Article 78 § 5). 44. According to the case-law of the domestic courts, in cases where there are no grounds to reduce the amount of the costs awarded to the winning party’s legal representation, the court may order the payment of the entire amount paid by the party and is not obliged to adhere to the minimum amounts laid down in the Regulation (тълк. решение № 3 от 13.05.2010 г. по тълк. д. № 5/2009 г., ОСК на ВАС). Other relevant provisions of the 2006 Code
45. Under the 2006 Code individual administrative acts may be challenged before a court, on grounds of unlawfulness, by the persons affected by them, within fourteen days from notification (Articles 145 § 1, 147 § 1 and 149 § 1). 46. General administrative acts may be challenged within one month from notification or within fourteen days from the individual notification of the act to the persons who participated in the proceedings before the administrative body (Article 179). Anyone with a legal interest may join the judicial review challenge or intervene as a party alongside the administrative body, until the beginning of the oral pleadings (Article 182 § 3). 47. The reopening of administrative judicial proceedings is permissible on the grounds that a party was deprived of the opportunity to participate in the proceedings as a result of a breach of the statutory rules or was not duly represented, or where the party was unable to appear in person to or be represented owing to an obstacle which it was unable to remove (Article 239 § 5). 48. Administrative judicial proceedings may be reopened on a number of additional grounds such as the discovery of new evidence or a finding that a witness made false statements, or a document was forged (Article 239). The Bar Act 2004
49. Section 36 of the Bar Act 2004 provides that the lawyer is entitled to remuneration for his or her work (subsection 1). The amount of the fees is to be determined by an agreement between the lawyer and the client. That amount must be fair and justified and may not be lower than the amount provided for in the Regulation issued by the Supreme Bar Council for the type of service concerned (subsection 2). The negotiation between the lawyer and his client of an amount lower than the fees provided for in the Regulation for the type of service concerned constitutes a disciplinary offence and may entail disciplinary liability on the part of the lawyer (section 132(5)). Regulation on the minimum amounts of lawyers’ fees
50. The Regulation provides that the amount of remuneration for the lawyer’s legal assistance must be agreed freely on the basis of a written contract with the client but may not be lower than the minimum amount set forth by the Regulation for the corresponding service. 51. At the material time the minimum lawyer’s fee for legal representation and legal assistance in civil cases concerning claims not subject to pecuniary assessment (неоценяеми искове), which was also applicable to the amount of remuneration for an in-house lawyer, was fixed at BGN 300 (approximately EUR 150; section 7(1), point 4). Under section 1 of the supplementing provisions, which provided that for non-regulated matters the remuneration was to be fixed by analogy, that amount was likewise applicable to legal representation in judicial review proceedings concerning claims not relating to a specific pecuniary interest. 52. The minimum fees applicable to a request for reopening of the proceedings were to be fixed at three-quarters of the minimum fees applicable to the main proceedings, but not less than BGN 300 (approximately EUR 150). If the lawyer had to attend a court hearing, the minimum fees could not be less than BGN 500 (approximately EUR 250; section 9(4)). 53. In a judgment of 2 May 2017 a five-judge panel of the SAC upheld the three-judge panel’s ruling setting aside parts of the Regulation concerning the minimum remunerations in civil cases regarding claims involving pecuniary interests on the ground that the amounts of the minimum remuneration adopted by the Supreme Bar Council were calculated solely by reference to the pecuniary interest of the case (решение № 9273 от 27.07.2016 г. на ВАС по адм. д. № 3002/2015 г., потвърдено с решение № 5485 от 2.05.2017 г. на ВАС по адм. д. № 1403/2017 г., 5‑членен с-в). The SAC found that, to be fair and justified, the minimum lawyer’s fees had to be based on two objective criteria: (i) the volume and the complexity of the work performed by the lawyer, and (ii) the value of the protected interest involved in the case (величината на защитавания интерес). An increase in the minimum lawyer’s fees as a result of an increase in the minimum wage in the country failed to consider the first criterion and therefore contravened section 36 of the Bar Act. In the SAC’s view, the right of the self-governing Bar Association to itself determine the minimum fees for lawyers’ work had to be balanced against the public interest. Hence, on the one hand, the highly responsible work of lawyers was not to be underestimated and made dependent on market mechanisms; on the other hand, its value must not be set at an unjustifiably high level such as to impede citizens’ and legal entities’ access to qualified legal assistance or to be an instrument enabling one party or the other to exert economic pressure in the proceedings. According to the SAC, that would negatively affect the rule of law (решение № 9273 от 27.07.2016 г. на ВАС по адм. д. № 3002/2015 г.). 54. In several more recent judgments, the SAC confirmed its finding made in the judgment of 2 May 2017 (see paragraph 53 above) to the effect that the sums fixed in the Regulation were calculated only by reference to the pecuniary interest in the dispute and failed to take into consideration the actual volume and complexity of the work carried out by the lawyer. Accordingly, such fees could not be regarded as fair and justified as required by section 36(2) of the Bar Act. The courts were therefore called upon to assess the two above-mentioned criteria in each case so as not to allow unjust enrichment of the parties by awarding costs which were not fair and justified (see решение № 2800 от 26.02.2019 г. на ВАС по адм. д. № 5907/2018 г., решение № 2804 от 26.02.2019 г. на ВАС по адм. д. № 3781/2018 г., решение № 4408 от 14.04.2020 г. на ВАС по адм. д. № 7914/2019 г., решение № 5728 от 16.04.2019 г. на ВАС по адм. д. № 789/2018 г., решение № 3513 от 9.03.2020 г. на ВАС по адм. д. № 7400/2019 г.; решение № 5263 от 30.04.2020 г. на ВАС по адм. д. №15010/2018 г.). Average income in Bulgaria in 2017
55. According to the National Statistics Institute of the Republic of Bulgaria, in 2017 average total annual income per capita was BGN 5,586 (approximately EUR 2,793). Relevant international legal materialS
56. The United Nations Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”) was adopted on 25 June 1998 and came into force on 30 October 2001. Bulgaria ratified the Convention in 2003. The Convention entered into force with respect to Bulgaria on 16 March 2004. 57. The Aarhus Convention promotes public participation in decision‑making and access to justice concerning issues with an environmental impact. In particular, the relevant provisions which deal with access to justice in environmental matters may be found in Tătar v. Romania, no. 67021/01, 27 January 2009 and Austin v. the United Kingdom ((dec.), no. 39714/15, §§ 27-28, 12 September 2017). THE LAW
ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 to THE CONVENTION
58. The applicant association complained that the allegedly excessive amount of the costs that the SAC had ordered it to pay for the legal representation of the KNPP, the successful respondent party in proceedings for reopening, was in breach of its right to peaceful enjoyment of its possessions. It relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
AdmissibilityArguments by the parties

(a)   The Government
59. The Government submitted, in substance, that the complaint was incompatible ratione personae with the Convention since it was doubtful whether the applicant association had the legal personality to be considered a valid petitioner for the purposes of Article 34 of the Convention. They noted that the association had been refused entry in the register of non-profit legal persons acting for the public benefit (see paragraphs 7-9 and 36 above). There was no information about any public activities carried out by the applicant association beyond its participation in the impugned proceedings. The Government also referred to the fact that the applicant association’s registered address had been occupied by another organisation (see paragraph 32 above). In their view all these factors suggested that the applicant association had been wound up back in 2005. (b)   The applicant association
60. The applicant association contested the Government’s submissions. It referred to the 2002 Act, which provided that non-profit legal persons registered under the previous law retained their legal personality under the 2002 Act (see paragraph 36 above). It also submitted that non-profit legal persons were wound up by the courts and that no such proceedings had ever been brought against it. The applicant association pointed out that it was one of the first environmental organisations in Bulgaria to have actively participated in a number of court cases concerning environmental matters. In support of that argument the applicant association submitted a list of cases in which it had participated before the domestic courts.

Outcome for Article P1-1: violation