The declaration of the emergency state triggered numerous changes in our way of life. The Minister of Health issued a series of orders introducing measures to cope with the COVID-19 epidemic. They imposed restrictions on individual citizens and businesses in the country as well.
Mayors of many municipalities also issued their orders to implement anti-epidemic measures. Most of them replicated the rules of the Minister of Health’s order.
However, some mayors introduced their anti-epidemic measures.
Such was the case with the young mayor of a small municipality, who, with his order, banned visits by citizens except to entertainment venues (bars, restaurants, etc.) and all commercial premises within the municipality territory. The only exceptions were grocery stores, banking/non-banking institutions, insurance offices, pharmacies, drugstores, telecommunication company offices, post offices, courier service companies, gas stations, and petrol stations.
All stores for non-food items – clothing, shoes, toys, large and small appliances, household goods, hardware stores and markets, florist shops, offices and commercial premises for various services, hairdressing and cosmetic salons, and many others – were prohibited from visits.
The owners of these businesses complied with the order issued by their mayor and closed their commercial premises.
But what was the problem?
Shortly after the mayor’s order was issued, the owners quickly realized that no similar measures were introduced in other municipalities. Commercial premises were operating while adhering to the respective hygiene measures. This was happening even in cities with confirmed cases of coronavirus.
That is why one of the owners turned to the LegalMasters.bg team to find out if the order issued by their mayor was lawful. Could anything be done to protect the businesses in the city?
What was the outcome?
Upon legal analysis of the order issued, it became clear that the mayor had introduced additional restrictive anti-epidemic measures. These far exceeded the measures introduced by the Minister of Health. Due to gross violations, we concluded that the order in this part was unlawful.
Why did we think this was the case?
Firstly, according to the Health Law, the mayor of a municipality is not authorized to introduce any anti-epidemic measures.
Under the Health Law, such an authority is set out for the Minister of Health. For the territory of a separate region or municipality, this authority belongs to the Director of the respective office of the Regional Health Inspection.
Secondly, the mayor’s order visibly contradicted the order of the Minister of Health
By his order No. RD-01-124/13.03.2020, the minister decreed the suspension of visits by citizens to entertainment and gaming halls, discos, bars, restaurants, fast food establishments, drinking establishments, cafes, and large shopping centres like malls, except for banking and insurance offices, grocery stores, and pharmacies in them.
The order explicitly stated that all commercial activities not mentioned expressly continue functioning as usual.
Due to the above, it was obvious that in his order, the mayor unlawfully restricted the rights of citizens and owners of commercial establishments in the municipality. The stricter measures introduced were disproportionate and harmful to business.
What did we undertake?
We informed the owners who contacted us that their rights had been unlawfully infringed. We recommended that the order made should be appealed following the statutory procedure. Namely, to the Regional Governor and subsequently to the courts.
Before engaging in time-consuming administrative and judicial battles, the owners decided first to initiate a meeting with the city mayor. They would send their representatives to request the cancellation of the introduced measures. They had already organized signatures and support from nearly 40 owners of commercial premises, representing about 90% of the business in the city. However, the meeting was denied.
Therefore, we prepared and filed a complaint to the Regional Governor, in which we detailed arguments about the severe defects of the issued order and the disproportionality of the measures taken.
The Success!
Within a short period, the Regional Governor issued his order and revoked the order of this mayor as unlawful in the appealed part. In so ruling, the Governor concluded as follows:
“In point 1 of the items listed in point I of Order No. … 2020, the mayor prohibits visits to “… and to all commercial premises within the municipality …, except for those listed in point 1.2.”, in the absence of legal competence at all for the mayor of a municipality to introduce additional or restrictive measures regarding the rights of citizens. The municipality mayor … has only the authority under Article 63, para. 4 of the Health Act, to create the necessary conditions for implementing the measures introduced by the Minister of Health, and the funds for their implementation are to be provided from the municipal budget. With a view to the contradiction with Order No. RD-01-124/13.03.2020 of the Minister of Health, it should be noted that the mayor of the municipality … can only order in case of violation of the already introduced by the competent authority anti-epidemic measures, but not to create new or stricter ones than those introduced.”
To ensure the normal life and at the same time the health of the citizens of the municipality, the Governor allowed the provisional execution of his revocation order.
This meant that businesses could reopen immediately.
Judicial Appeal
The Regional Governor’s order was appealed unsuccessfully by the Mayor to the relevant administrative court.
The court fully upheld the act of the Regional Governor as correct and lawful, concluding the following in its motives:
“…under the conditions of a pandemic, a declared state of emergency, and numerous restrictions imposed on citizens and traders, the public interest, which is subject to protection, is a combination of the inalienable human rights listed in Chapter Two of the Constitution of the Republic of Bulgaria, including not only the state’s protection of the health of every individual but also the right to work and have freedom to choose a place of employment, which had been infringed by the Order of the Mayor. The court finds that by suspending the provisional execution of the contested act and, accordingly, the action of the revoked ban on the operation of all commercial premises, the citizens of Municipality … might be forced to travel to other populated areas where no such restriction exists, as evidenced by the published orders of the local administration, such as in … and …, to acquire items of urgent necessity, which will lead to a threat of spreading viral infection and thus is not in the public interest.”
Unfortunately, similar unlawful acts occurred in other places throughout the country. Under the pretext of protecting the health of citizens, local government authorities were introducing unlawful bans on businesses and citizens. They restricted access to commercial premises (e.g., mayors of Krichim, Sopot, and Novi Pazar). They imposed curfews (e.g., the Regional Governor of Stara Zagora) and other anti-epidemic measures assessed by a mayor or regional governor.
Following the events, with his order dated April 6, 2020, the Minister of Health revoked all restrictions imposed by local government authorities that were not in accordance with the Health Act and the Act on Measures and Actions during the State of Emergency, declared by the decision of the National Assembly of March 13, 2020.
Ultimately, the closure of commercial premises, and the implementation of similar unlawful measures by local authorities, led to significant losses for businesses throughout the country. This happened during a pandemic when businesses were already collapsing every day.
State and Municipal Liability for Damages
Therefore, it is good to know that a legal possibility for compensation for damages caused by unlawful acts of the administration exists.
According to Article 1, paragraph 1 of the State and Municipal Liability for Damages Act (SMLDA), the state and municipalities are liable for damages caused to citizens and legal entities by unlawful acts, actions, or inaction of their bodies and officials during or on the occasion of the performance of administrative activities, and for damages caused by the action of annulled as unlawful or declared null and void subordinate normative acts as well.
Moreover, all property and non-property damages that are a direct and immediate consequence of the harm are subject to compensation. It does not matter whether the specific official is guilty or not. Liability is enforced through judicial proceedings before the administrative courts in the country.
At LegalMasters.bg, we assist citizens and businesses to protect their rights and challenge any unlawful acts of the administration through court.
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Dear readers, All materials published on LegalMasters.bg are for informational purposes only. These materials reflect the personal views and professional opinions of the respective attorneys from the team. They should not be perceived as exhaustive legal analyses or individual legal advice. Before taking or not taking legal action on the issues discussed, seek professional legal advice for your specific case.