Why Glavchev Cannot Return as Chairman of the Bulgarian National Audit Office
Bilyana Gyaurova-Wegertseder
It is already clear that we are going to the 7th snap elections in the last 3 years. Rumen Radev selected the next caretaker Prime Minister the current deputy chairperson of the Audit Office, Gorica Grancharova- Kozhareva . She has time until August 19 to form a cabinet, which means that the elections will be on October 20. This is yet another politically and historically lost time for Bulgaria. Taxpayer money will be spent again, because the so-called political class has again acted selfishly and irresponsibly. This time, however, there is one new element that requires attention.
Mr. Glavchev's caretaker government was the first to be created and to operate under the new provisions in the Constitution adopted with the amendments of December 2023. Moreover, the decision of the Constitutional Court of July 26, 2024 showed that the constitutional judges did not agree in terms of the changes related to the President, which means that the limited options for choosing a caretaker Prime Minister are retained. The change regarding the work of the parliament also remains in force, i.e. it remains permanently operational, being able to exercise its legislative and electoral powers in the pre-election period. These reserved changes are important, because they can have a serious impact on the way the government of the state is structured and functions, and through the permanent National Assembly - on the legal framework of our country.
In this context, in April, when it became clear that the shortlist for caretaker Prime Ministers was further shortened due to inability, incompatibility, unwillingness or plain fear on the part of those who could potentially occupy the post, the Parliament urged to adopt changes in the Law on the Audit Office. The goal was to overcome at least one of the incompatibilities. The changes refer to exceptions in the requirements for the persons who can be elected as chairman, deputy chairman or member of the Audit Office / art. 16, ZSP/.
One of the existing and explicitly stipulated in the law conditions for holding the position of chairman and deputy chairman of the Audit Office is that in the last three years before the election, the persons have not been a body of the executive power under Art. 19, para. 2 – 4 of the Law on Administration. And this means that they must not have held the positions of prime minister, deputy prime minister, minister, regional governor, mayor of a municipality, of a region and of a town hall, deputy mayor, chairman of a state agency, executive director of an executive agency or head of a state institution established by law or by a decree of the Council of Ministers, which has functions in connection with the implementation of executive power.
This absolute prohibition ensures the impartial and objective performance of the powers of the Chairman and Deputy Chairman of the Audit Office and prevents the occurrence of a conflict of interest. The Audit Chamber audits the activities of the government and administrative bodies, and last but not least, it carries out financial control over the activities of political parties and the management of the property provided to them. Therefore, the National Audit Office is also a supreme audit institution, to which several key international auditing principles and standards apply. One of them is precisely the guarantee of maximum independence - functional and organizational, and this is also achieved through the cited requirement for incompatibility of its leaders.
The changes from April 2024 , made so that Dimitar Glavchev could be named Prime Minister by President Radev, introduced the following exception to the incompatibility - "unless they are appointed as acting Prime Ministers in accordance with Art. 99, para. 5 of the Constitution of the Republic of Bulgaria " . And if, according to the logic of the Bulgarian legislator, the incompatibility was overcome, the contradiction and violation of the international standards of the supreme auditing institutions remained. By these standards, the incompatibility is absolute and cannot be overcome, which is why the holders of senior positions in the Supreme Audit Institution are automatically excluded from opportunities to hold other government positions (albeit even for a limited period of time).
This conclusion is also confirmed by the new paragraph 4 of Art. 16 of the Law on the Audit Office, which gives the right to the chairman and deputy chairman of the Office to terminate their powers when they are elected by the president as caretaker prime minister, continuing the mandate for which they were elected after their release.
The amendments made to the law create a legal paradox. On the one hand, there is incompatibility with the positions listed above from the Law on Administration, and for the last three years preceding the election. On the other hand, however, an exception to the incompatibility has been introduced specifically for the case in which the position of acting Prime Minister is held, without taking into account the fact that the Prime Minister is the highest position in the executive power of Bulgaria. In this way, an illogical conclusion is imposed, namely – there is no incompatibility when occupying the highest position in the executive power, but there is incompatibility when occupying all other lower positions in the executive power.
Another very important fact should be noted here - the current acting Prime Minister Dimitar Glavchev also holds the position of Minister of Foreign Affairs. And if the changes made earlier this year introduced the dubious exception to the rule of incompatibility in relation to the Prime Minister, there is no such exception in relation to holding the position of Minister.
The Law on the Audit Office explicitly states that a person who has held the position of minister in the last three years preceding the election cannot be elected as the chairman of the Audit Office. The purpose of this prohibition (to ensure the impartial and objective performance of the powers of the Chairman of the National Audit Office) requires that the condition be fulfilled not only at the time of election, but also at any moment during the tenure of the position of Chairman of the Audit Office.
At the present moment, the specified requirement is not fulfilled, in other words - there is an incompatibility and it is not permissible for the current acting Prime Minister and Minister of Foreign Affairs to hold the position of Chairman of the Audit Office before three years have passed since the post of Minister of Foreign Affairs is vacated.
The case has moral, principled, and ethical dimensions, but these are concepts that are gradually disappearing from the vocabulary of most Bulgarian politicians and MPs. In particular, in the case of the Audit Office, emblematic of the destructive processes in Bulgarian institutions, it was seen that the National Assembly did not comply even with the decisions of the Constitutional Court, issued on the occasion of the removal of the previous chairman of the Office, Tsvetan Tsvetkov / most likely with a record for speed, as it was carried out by Parliament in less than 24 hours/.
In the current situation, the expectation remains that the members of the parliament will at least comply with the texts they themselves adopted less than half a year ago, will not return Mr. Glavchev to the Audit Office, but will terminate his powers ahead of schedule and will decide to start a procedure for the election of a new chairman of the Audit Office.
