The court reminded that mandatory instructions in the motivations of court decisions must be followed. The Sofia City Administrative Court Confirmed its Previous Judgment that the Elektroenergien Sistemen Operator EAD (ESO EAD), has to Provide Information Regarding the Tenders for the Electricity System Regulation Reserves as requested by the nongovernmental organization Za Zemiata – Access to Justice.
On 9th of March 2023 the Sofia City Administrative Court (SCAC)delivered a judgment in a court case supported by AIP against а partial denial of the ESO EAD Executive Director to provide information requested by “Za Zemiata – Access to Justice” Association, which is backed by Greenpeace and the Environmental association "Za Zemiata" (For the Earth) teams.
Za Zemiata requested information about the prices and the actual energy obtained as results of the daily and monthly tenders for primary and secondary energy regulation reserves, previously known as "cold reserves".
This is the third court decision after the two different panels of the SCAC overturned consecutive refusals by ESO EAD on the same request and returned the administrative file for reconsideration, providing mandatory instructions for compliance with the law. The second court decision established that the requested public information is not classified or protected by law, neither falls within the cases of Article 13, par. 2 of the Access to Public Information Act. The same judicial panel considered that the right to receive and impart information provided for by Article 10, § 1 of the European Convention of Human Rights and Fundamental Freedoms was infringed. There are no legal restrictions concerning "secret" information or the protection of national security or public safety. (Decision N. 5034/22.07.2022 Sofia City Administrative Court, Second Division, 22nd panel on administrative case № 4338/2022)
ESO EAD refused the information for the third time. The partial denial was appealed with the support of the AIP legal team.
In the latest (third) judgment from 9th of March 2023 the Court stated that once again the refusal was issued completely in contradiction to the mandatory instructions given by the Court in its previous decision which is final and is not subject to challenge. The instruction was given that: "the requested information must be provided to the requestor". The decision doesn't contain instructions for reassessment of the conditions for the provision of the information. The Court instructions are absolutely mandatory for the administrative body. The reasons of the refusal are completely irrelevant and the refusal itself is unlawful and issued in complete contradiction with the judgment entered into force. The decision is final and is not subject to a cassation appeal.
„In this clear and principled decision, the court emphasizes two important principles. First, it applies the principle of non bis in idem, i.e. it establishes that what has already been decided in the same dispute between the same parties by previous judicial panels must be respected. Second, referring to Access to Public Information Act to return the request for reconsideration does not mean to providing a new opportunity for arbitrary refusal. Since in this case the previous judicial panels established that the requested information is not protected by any secrecy the obliged body – ESO EAD – cannot claim new grounds for denial, there are none. The only solution is the requested information to be provided", commented Stephan Anguelov, attorney-at-law, AIP.