With Resolution No. 3 of 23 April 2025, published in State Gazette No. 37 of 2 May 2025, the Constitutional Court declared unconstitutional the provisions of Article 2, paragraph 4, concerning agrophotovoltaics, and Article 17a, paragraph 3, in the part referring to “facilities for the production of energy from renewable sources” of the Agricultural Land Protection Act (ALPA).
According to the Constitutional Court, these two provisions violate the constitutional requirements for the special protection of agricultural land and allow deviation from the mandatory two-stage procedure for changing land designation as established by law. Specifically, Article 17a, paragraph 3 ALPA creates the possibility for agricultural land to be used for the construction of energy facilities without prior approval of a development site or route — a key step in the procedure in which the productive qualities of the land and the objectives of the change are assessed. The Court emphasizes that eliminating this stage infringes Articles 15 and 21 of the Constitution, as it deprives agricultural land of the protection mandated by law and allows circumvention of essential legal safeguards.
In its reasoning, the Court notes that the administrative procedure under Chapter Five of the ALPA consists of two stages — first, approval of a development site for design, and then the issuance of a decision on the change of land designation. The approval of the site is the instrument that ensures the change is made under exceptional circumstances and only when a proven need exists, as required by Article 21, paragraph 2 of the Constitution. By introducing an exception for renewable energy projects without requiring the approval of a site, the law enables a de facto change of land designation without proper review and control by the competent commissions — a situation deemed inadmissible.
The Constitutional Court’s resolution takes effect prospectively and is binding on all public authorities. According to Article 14, paragraph 3 of the Constitutional Court Act, provisions declared unconstitutional shall cease to apply from the date the resolution enters into force — in this case, 5 May 2025.
With the entry into force of Resolution No. 3 of 2025, which invalidates the provisions allowing the change of agricultural land designation for energy projects without prior site approval, a significant practical issue arises: what happens to the many procedures that were initiated but not finalized by 5 May 2025? While the resolution does not have retroactive effect and does not impact completed procedures, it creates considerable uncertainty for those still pending as of the effective date. Particularly complex are the cases in which a project has undergone part of the process — for example, where a detailed development plan (DDP) procedure has started but no site has been approved, or where a DDP has been approved but the certificate under Article 24b ALPA has not yet been issued.
What happens when a DDP has been approved but the certificate for change of designation has not been issued — must the process be restarted to include site approval? The Constitutional Court’s ruling challenges legal certainty — is a repeated first stage required, and how would that be integrated into an already advanced procedure? As of now, the competent institutions have not provided guidance, but one thing is clear: the resolution will have a significant impact on many renewable energy projects in development and may require substantial adjustments in administrative practice.
The article above is for information purposes only. It is not a (binding) legal advice. For a thorough understanding of the subjects covered and prior acting on any issue discussed we kindly recommend Readers consult Ilieva, Voutcheva & Co. Law Firm attorneys at law.
