31 December 2012
In December 2012 the first procedure in Bulgaria for issuance of a license for lease of a radio frequency spectrum was successfully completed. Dimitrov, Petrov & Co. Law Firm rendered legal assistance by identifying all requirements and necessary documents for obtaining the license and preparing an application and a lease agreement.
The possibility of lease of a radio frequency spectrum was envisaged for the first time in the Bulgarian legislation by the amendments to the Electronic Communications Act as of the end of 2011. The implementation of this possibility became achievable only after relevant sublegislative rules were adopted by the Communications Regulation Commission at the end of September 2012.
Ordinance No 3 of November 30, 2012 on the entry, qualification and remuneration of expert witnesses
Ordinance No 3 of November 30, 2012 on the entry, qualification and remuneration of expert witnesses (the Ordinance) was promulgated in the State Gazette, issue 98 of December 11, 2012.
The Ordinance repeals the existing hitherto Ordinance No 1 of 2008 on the entry, qualification and remuneration of expert witnesses (issued by the Supreme Judicial Council, promulgated in the State Gazette, issue 11 of 2008)
The Ordinance governs:
1. the terms and procedure for proposals for entry and changes in the lists of specialists approved as expert witnesses;
2. the conditions that the specialists should meet to be approved as expert witnesses;
3. the conditions and procedure for determining the remuneration of expert witnesses.
According to the Ordinance, there are several types of expert reports. They could be homogeneous – where knowledge from one field of science is required, and they could be complex - where knowledge from several scientific fields is required. Depending on whether the expert report is carried out by one or more than one expert, expert reports could be single or collective. An additional expert report is assigned when the expert’s conclusion is not sufficiently complete and clear. A second report is assigned when the expert’s conclusion is not justified and raises doubts about its correctness.
The expert witness shall have free access and can make inquiries on the case for which he/she has been appointed, to receive by priority copies of documents and information at the court, the prosecution, the pre-trial authorities, administrative and other authorities, and wherever necessary, only based on his/her capacity as expert witness identified with an expert witness card.
The court, the prosecution, pre-trail authorities, administrative bodies and other services in the country are obliged to cooperate with expert witnesses.
In order to be approved as expert witnesses, candidates should meet several requirements and conditions. As an expert witness can be approved a legally capable person who meets the following requirements:
1. has completed a vocational education and has the necessary special scientific knowledge in a particular type of forensic expertise;
2. has at least 5 years experience in the specific field of science;
3. has not been convicted of criminal offense;
4. has not been deprived of the right to practice a profession or occupation;
5. does not exercise judiciary functions in the judicial system;
6. has a permit for permanent residence in the Republic of Bulgaria, if the person is a foreign citizen.
The expert witness is entitled to remuneration for the expert report and for the cost of the materials, supplies, tools, devices, machines and computer time, and other necessary expenses.
In determining the remuneration, the authority that assigned the expert report considers and assesses the complexity and specificity of the tasks assigned, the competence and level of qualification of the expert witness, the time necessary to perform the expert report, the volume of the work performed, the related costs, such as used materials, supplies, tools, equipment, etc.
For the different types of expert reports, the expert witness shall be paid remuneration according to actual hours worked and expenses incurred. Where the expert report is carried out by more than one expert witness, the remuneration is to be paid to each of them. For each hour worked the remuneration is 5 BGN (Bulgarian leva). For particularly complex and specific expert reports carried out by highly qualified expert witnesses, the remuneration may be increased by up to 100%. The same increase may be applied to expert reports carried out during national holidays and weekends. The completed expert report is presented with a reference statement and the payment documents for the related expenses incurred. If assessed that there are grounds to increase the initially determined remuneration, the authority which assigned the expert report to the legal expert witness determines the final remuneration. The remuneration and expenses shall be paid to the expert witness by the authority which appointed the expert witness. The amounts paid are from a deposit or the budget of the authority which assigned the expert report.
Act for Amendment and Supplement to the Advocacy Act
The Act for Amendment and Supplement to the Advocacy Act was promulgated in the State Gazette, issue 97 of December 7, 2012.
Amendments have been made with respect to the persons whose rights and obligations are regulated by this act, and in particular, the term “European Union lawyer” is introduced. The conditions for practicing law and the rights and obligations of the European Union lawyer are regulated.
After Art. 15 the title “Section II Permanent Settlement” is introduced, the section regulating the conditions for permanent settlement of a European Union lawyer on the territory of the Republic of Bulgaria for practicing law.
The amended Art. 17 and Art. 18 stipulate the requirements for an application for registration with a bar association of a European Union lawyer, and the amended Art. 19a settles the conditions for a European Union lawyer to take an equivalence exam on Bulgarian law. The procedure and conditions for uniting the activity by way of a contract for partnership of lawyers, law firms, European Union lawyers and a group of European Union lawyers that are permanently settled on the territory of the Republic of Bulgaria or are temporarily practicing law pursuant to Art. 19d are also regulated. The new Section III stipulates the conditions for temporary practicing of law on the territory of the Republic of Bulgaria.
The amended Art. 31 regulates the right of the lawyer and the permanently settled European Union lawyer to free priority access in court, the judicial bodies, administrative bodies and other services in the country, as might be necessary, by identifying their capacity as lawyers with a card issued by the Supreme Bar Council.
In chapter 10 the title of Section IV is changed to “Branch”. The registration and the activity of the branch are performed in accordance with Art. 57, 58 and Art. 60 – 75, and the restriction under Art. 58 with respect to the number of lawyers is not applied.
According to the amended Para. 3 of Art. 86, members of the Bar Association with at least ten years of legal practice may be elected members of the Bar Council.
In the amended Art. 99 and the following of Section VII the term “delegates at a general meeting of lawyers in the country” is added, and the procedure and conditions for their election are regulated. The term “a group of European Union lawyers” is introduced in the Additional Provisions.
Act for Amendment and Supplement to the Commercial Register Act (AASCRA)
AASCRA was promulgated in the State Gazette, issue 99 of December 14, 2012.
The main amendments introduced in the Commercial Register Act (CRA) in the first place include the amendment of Art. 16, Para. 3, according to which the written documents submitted by the applicant under Para. 1 shall be stored for a 10-year term from the date of registration, cancellation or announcement. After the expiry of the storage term, the documents may be destroyed, unless they are subject to submission to the National Archives. The procedure and manner of storage are determined by the Executive Director of the Registry Agency.
§1, item 4 of the Additional Provisions is revoked.
In the Transitional and Final Provisions the following amendments and supplements have been made:
§5a, Para. 1 is amended in the following way: “An application for liquidation under §5, Para. 2 may be filed with the Commercial Register not later than January 31, 2015, the liquidator and the liquidation period being specified in the application.”
Furthermore, new Paragraphs 2 to 7 have been created. They regulate the issues of who is entitled to submit an application under Para. 1 and the opportunity for such persons to declare circumstances subject to entry regarding non-reregistered companies and cooperatives which as of December 31, 2011 are in liquidation. The documents required by the Agency in electronic form from the court of registration of the non-reregistered merchant are specified (certificate of good standing, articles of association or statutes).
§5b, Para. 1 and 2 are revoked. §5b, Paragraphs 3 to 7 are amended in the following way: As a liquidator of a non-reregistered merchant may be appointed the person or persons who, according to the registration, are entitled to represent the merchant in front of the court of registration. The liquidators are considered notified of the appointment by their registration as liquidators in the Commercial Register, and a notarized consent with their specimen signature is not required. Where the person under §5b, Para. 3 is unable to perform the functions of a liquidator or there is no registered representative, the person specified in §5a, Para. 1 is appointed liquidator. Where more than one application have been filed, 2 or more persons may be appointed liquidators, and where there is no specified person as a liquidator, the liquidator is appointed ex officio by the registration official. The liquidation costs are borne by the merchant, and if the latter does not have the funds, such are provided by the person who has filed the application for liquidation. In this case the costs are reimbursed after the sale of the property. The remuneration of the liquidator is paid after termination of his/her service in the amount and under the procedure established by the ordinance under Art. 31.
In §5b, Para. 9 the extension of the liquidation term is regulated, and in §5b, Para. 10 the opportunity to replace an appointed liquidator is provided.
§5b, Para. 11, 12 and 14 are revoked.
§5c regulates the filing of an application for liquidation commenced during an ongoing execution procedure against the merchant. It is also provided that an insolvency procedure may be initiated for a merchant under §5, Para. 2. In this case the bankruptcy court orders an ex officio re-registration.
According to §5d, Para. 2, the company files of terminated and ex officio cancelled sole traders and branches of foreign traders and cooperatives are archived and stored in the court of the last registration. They are destroyed within the terms provided, but not earlier than January 1, 2017 – for sole traders and branches of foreign traders, and not earlier than February 1, 2022 – for the non-reregistered companies and cooperatives under §5, Para. 2. §5d, Para. 3 is revoked, and §5d, Para. 4 and 5 are amended in the following way: the companies and cooperatives with terminated activity which as of January 31, 2017 are not re-registered, shall be considered cancelled. Where for a trader under §5d, Para. 4 any property is established, the persons under §5a, Para. 2 may file an application for liquidation even after the expiry of this term pursuant to Art. 273, Para. 2 of the Commercial Act, but not later than December 31, 2022.
With AASCRA relevant amendments have been also made in the Tax-Insurance Procedure Code and the Civil Procedure Code, and the Ordinance under Art. 31 of the Commercial Register Act is harmonized with AASCRA within 1 month after its entry into force.
Interpretative Decision No 4 of December 17, 2012 by the Supreme Court of Cassation
The General Assembly of the Civil College of the Supreme Court of Cassation (GACC of SCC) adopted an interpretative decision on issues related to the acquisitive prescription within the meaning of Art. 79 of Property Act (PA).
GACC of SCC was referred to for resolution on three individual issues related to the aforesaid substantive right, and the specific decisions adopted by SCC are as follows:
1. On application of Art. 120 of the Obligations and Contracts Act, the reference to prescription made before the authority approached for protection of a subjective right by claiming ownership, by objection to an ownership claim or by obtaining a notary act for ascertainment under Art. 587 of the Civil Procedure Code, concerns the provisions of acquisitive prescription.
2. Reference to prescription is not a constituent element of the acquisitive ground under Art. 79 of PA, but a procedural instrument for protection of the substantive consequence of the acquisitive prescription, respected by the moment of expiry of the legal time period.
3. Ownership right over real estate may be acquired pursuant to Art. 79 of PA by a person who has not referred to acquisitive prescription before his death and his rights may be recognized to his heirs during litigation upon a dispute over ownership.
The decision has been signed with dissenting opinion by some of the judges.