Does the Bansko Ski Zone Exceed the
Concession Area and Why?

After 3 years and 5 court instances the WWF and the
Bulgarian public still do not have a clear answer on these issues

These are questions of high difficulty. Questions which remain unanswered regardless of the fact that the organization World Wide Fund (WWF) Danube-Carpathian Programme won a case at five court instances against the refusal of the Ministry of Environment and Waters (MOEW) to provide information about the results of legal analyses made by the ministry aiming to find the reasons and the possible solutions for overcoming the problem of exceeding the concession area of Bansko Ski Zone in the National Park “Pirin” with 65 hectares. The ministry found that mismanagement of concession area in 2010 – 2011.

The WWF requested information about these analyses in the beginning of 2013. The refusal of the Chief Secretary of the ministry was on the grounds that the information was related to the operational preparation of the acts of the MOEW and had no significance of its own (exemption under Art. 13, Para. 2, item 1 of the APIA). The information was related to ongoing negotiations between the MOEW and the parties of the concession contract, i.e. the requested legal analyses contained opinions and positions related to ongoing and future negotiations (exemption under Art. 13, Para. 2, item 2 of the APIA). As a third ground for the refusal, it was stated that the legal analysis would affect the interests of third parties (the legal companies which had prepared the analyses), who had expressed explicit dissent for their disclosure.

With the assistance of AIP, the refusal of the Chief Secretary was challenged before the Administrative Court Sofia – city (ACSC). The court repealed the refusal and obligated the minister to provide the requested information. The court found that the exemption related to preparatory documents stipulated by Art. 13, Para. 2 of the APIA was inapplicable when environmental information was requested and there existed overriding public interest in the disclosure in view of the significance of the problem about land management in national parks. As far as the dissent of the legal companies for the disclosure of the information was concerned, the court pointed out that if a state body contracted an assignment which was paid with public money, the results from the execution of the assignment belonged to the contractor and in such cases the interests of the executor was not and could not be affected by letting the public know the results of their work – the legal analyses in the specific case.

The ACSC decision was appealed by the MOEW before the Supreme Administrative Court (SAC). The appeal was left without consideration by two instances of the SAC since it was not filed properly by an authorized lawyer of the ministry. Thus, the decision of the ACSC obligating the minister to provide the requested information to the WWF entered into force in February 2014.

Instead of executing the court decision, in May 2014 the Chief Secretary filed a request to the ACSC for rectifying an apparent factual mistake in the effective court decision which obligated the minister of environment and waters to provide the requested information. According to the arguments presented by the Chief Secretary, if the litigation was against his refusal (of the Chief Secretary), then the court decision should obligate him (the Chief Secretary) to provide information, not the minister. In response, the attorneys of the AIP prepared a letter of objection to the court, stating that at the time of the issuing of the challenged refusal and the litigation against it, the Chief Secretary of the MOEW had been explicitly authorized by the minister as stipulated by Art. 28, Para. 2 of the APIA to issue decisions on access to information requests with and Order No. RD 75/26.01.2010. Subsequently, the Chief Secretary of the MOEW had lost the power to issue decisions on access to information requests since the new Minister Iskra Mihailova repealed the authorization order with Order No. RD-485/05.06.2013 and no other order was issued under Art. 28, Para. 2 of the APIA for authorizing officials different from the minister to decide on access to information requests.
 
The request for rectifying an apparent factual mistake was dismissed by two new court instances. They found that the minister of environment and waters was the competent body which should provide the requested information. Thus, in July 2015, the ACSC decision repealing the refusal and obligating the minister to provide information about the results from the analyses finally entered into force.

In July 2015, again with the assistance of AIP, a request was prepared and sent to the Minister of Environment and Waters to execute an effective court decision and provide access to information. As a result of that action and on the base of a decision of the minister as of September 18, 2015, information was provided to the WWF. However, these were not the copies of the legal analyses, but an answer to a question. The requesting organization figured out that the request had not been formulated very well, as they had requested information about the results from the analyses, but not the copies of the analyses. According to the information provided by the ministry, the results from the legal analyses prepared by two legal companies were that the concession contract was unclear and did not allow to figure out if the concession area had been exceeded.

Alexander Dunchev from the WWF stated that as a result of the litigation they had expected to obtain information about the legal analyses on the ski-zone Bansko performed by the MOEW to clarify what were the reasons for the overexploitation of areas in the park of 65 ha. that the ministry itself had found five years ago. Unfortunately, the disclosed information contains only the results of the legal analyses made by the external companies which claim that the concession contract is unclear giving no idea of what concession area was, nor the size of that area. The disclosed information contains no analyses made by the MOEW, but only of contracted companies which, according to the WWF, were assigned in order to cover violations which had brought to the area overexploitation. The obtained information does not give specific reasons for the concession area exceeding, nor possible solutions for overcoming the problem.

Thus, 3 years and 5 court instances later, the WWF and the Bulgarian public still do not know why it happened that the concession area of the Bansko Ski Zone was exceeded, nor how to overcome the problem. What became clear for certain is that the ministry has paid to two legal companies to make legal analyses of the concession contract. The analyses found that the contract is unclear about the size of the concession area which makes it impossible to analyze it.

The WWF does not have an intention to give up the case. They will file a new request to the ministry asking for copies of all legal analyses of the concession – those made by the ministry itself, and those made by external experts. Let us see how many years and court instances it will take to inform the public about the unconscientious exploitation of large territories in a national park that were found by the MOEW.

October 2015

This case is part of the book "Civil Participation and Access to Information (15 Years of the APIA, 37 stories of NGOs)" published by AIP within the implementation of the project “Enhancing the Capacity of Nongovernmental Organizations to Seek Public Information” supported with a grant under the NGO Programme in Bulgaria under the Financial Mechanism of the European Economic Area 2009 – 2014 (www.ngogrants.bg).

The whole responsibility for the content shall be taken by the Access to Information Programme Foundaiton and it cannot be assumed under any circumstances that the document reflects the official stance of the  Financial Mechanism of the European Economic Area and the Operator of the Programme for NGO support in Bulgaria.