20 years together

December 2013

31 December 2013

Act for Amendment and Supplement to the Administrative Procedure Code (AASAPC)

AASAPC was promulgated in State Gazette, issue 104 of December 3, 2013.

The main amendments that are made in the APC with the AASAPC are associated with the local jurisdiction in a procedure for appealing administrative acts. In this regard, a new version of Art. 133 of the APC is adopted which governs the local jurisdiction rules. The amendments in the new Art. 133 will be summarized below.

According to the text of the new Art. 133, Para. 1 of the APC, cases regarding appeal of administrative acts are heard by the administrative court at the seat of the territorial structure of the administration authority that issued the appealed act, in the area of the permanent or current address or registered office of the applicant.

The amendments to Art. 133, Para. 2 consider situations in which there is no possibility to appeal an individual administrative act before the administrative court at the seat of the territorial structure of the administration authority that issued the appealed act, in the area of the permanent or current address or registered office of the applicant. There are two cases in which the requirement of paragraph 1 is not feasible. If the act has several recipients who have a permanent or current address different from the address of the territorial structure of the authority that issued the act, the appeal shall be heard by the administrative court at the seat of the administration authority that issued the act. The second case in which the appeal shall be heard by the administrative court at the seat of the administration authority that issued the act is when a territorial structure of the administration authority does not exist.

Cases concerning appeal of general administrative acts shall be heard by the administrative court at the seat of the administration authority that issued the appealed act. Cases of appealing both general and individual administrative acts shall be heard by the Administrative Court - Sofia, when the registered office of the administration authority that issued the act is abroad.

Claims for compensations shall be brought before the court at the address or registered office of the applicant when combined with an appeal under any of the cases considered above.

The legislative amendments to the rules in Art. 133 of the APC governing the local jurisdiction, which were discussed above, are made with the primary goal to relieve the workload of the courts. With the introduction of a distinction between an administrative authority and a territorial structure of the administrative authority, it becomes possible to specify where exactly should the local jurisdiction on appealing of different types of administrative acts be. Thus providing an opportunity to redirect some of the cases of the courts with higher workload (mainly the courts concentrated in Sofia as an administrative center of most of the administrative bodies) to the courts with less workload.

A new item 1a is created in paragraph 1 of the Supplementary Provisions of the APC, which provides legal definition of the term “territorial structure of the administration”. According to this definition а territorial structure of the administration is a territorial organization unit of the administration established by a legislative act, regardless of whether it is a separate legal entity supporting the administrative authority when exercising its powers.

The amendments made in paragraph 3 of the transitional and final provisions of the APC stipulate that the pending cases, the jurisdiction of which is changed with AASAPC shall be brought before the courts in which they were commenced. This is an important clarification which intends to prevent any confusion that may arise when implementing the new provisions related to the local jurisdiction.

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Act for Supplement to the Labor Code

The Act for Supplement to the Labor Code (ASLC) was promulgated in State Gazette, issue 104 of December 13, 2013.

A new Art. 164b supplements the regulation regarding the different types of leaves. It introduces a new type of leave – in case of adoption of a child between 2 and 5 years of age.

According to Para. 1 a female worker or employee, who adopts in the form of full adoption, a child who has turned 2 years of age, has the right of a leave for a period of 365 days as of the day the child was surrendered for adoption but before the child turns 5 years of age. With the consent of the female adopter the male adopter might use the leave as well but only 6 months after the child was surrendered for adoption. The leave of the female adopter shall be interrupted for the time during which it is used by the male adopter. The leave might be used by the male worker or employee alone, as long as he is the only adopter of the child.

In case of death of the child, suspension of the adoption or when the child is placed in a child-care institution, the right of a leave under Art. 164b cannot be exercised.

During the time of the leave, the female or male adopter has the right to compensation under the conditions of the new Art. 53a of the Social Security Code and its amount is defined according to the terms for defining the amount of pregnancy and childbirth compensations. The time of the leave is also recognized as length of service.

The terms and method for the use of this type of leave shall be regulated with an Ordinance issued by the Council of Ministers.

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Act for Amendment and Supplement to the Foreigners in the Republic of Bulgaria Act

The Act for Amendment and Supplement to the Foreigners in the Republic of Bulgaria Act (AASFRBA) was promulgated in State Gazette, issue 108 from December 17, 2013.

The main amendments made to the FRBA are related to the requirements that a foreign person shall meet in order to obtain a permanent residence permit in the country. The legislative amendments give the impression of gradual liberalization of the regime, which is most likely related to the increasing flow of refugees to the country.

The majority of amendments are made in Art. 25 of the FRBA, which stipulates in detail the requirements that a foreign person needs to meet in order to obtain a permanent residence permit in the country. Art. 25, Para. 1, Item 2 creates a new possibility for a foreign person who has a civil marriage with another foreign person who has already received a permanent residence permit in Bulgaria based on items 6, 7 or 8 of Art. 25, to obtain a permanent residence permit. Furthermore the expiration of a 5-year term after the marriage is no longer required and the foreign person may immediately acquire the respective permit. The above-mentioned items (6, 7 or 8) are related to the investment in the Bulgarian economy of an amount of no less than BGN 1 000 000 by a foreign person through the purchase of shares and/ or bonds or investing an amount of no less than BGN 6 000 000 in the capital of a Bulgarian company. The idea of the legislative amendments is clearly to liberalize the regime for obtaining a permanent residence permit by foreign persons who have made a significant contribution to the Bulgarian economy.

A new Item 7 in Art. 25 of the FRBA is created which stipulates that foreign persons who have invested an amount of no less than BGN 1 000 000 in a Bulgarian credit institution with a contract for fiduciary management for a term of no less than 5 years also have the opportunity to acquire a permanent residence permit without any certain terms.

A new Item 19 in Art. 25 of the FRBA is created which stipulates that foreign persons who have invested an amount of no less than BGN 600 000 in real estate or have invested an amount of no less than BGN 250 000 in economically disadvantaged regions within the meaning of the Investment Promotion Act and have maintained their investment over a period of over five years, automatically receive a permanent residence permit.

All of the above-mentioned amounts and sums shall be established duly by the Bulgarian Investment Agency.

Amendments have been made in the regulation of the revocation of a residence permit of a foreign person in the Republic of Bulgaria, stating the new grounds introduced by AASFRBA. An additional ground for revoking the permit for permanent residence of a foreign person in the Republic of Bulgaria was introduced in Art. 40, Para. 1 of the FRBA. It occurs when the investment for which the foreign person has obtained a permanent residence permit is terminated or transferred to another person before the expiration of the period specified by law, regardless of the grounds for termination or transfer.

As evident from the above discussed amendments in the FRBA, the legislator is seeking to mitigate the regime for issuing permanent residence permits to foreign persons in Republic of Bulgaria. This mitigation, however, is mainly aimed at foreign persons who, by their actions, contribute to the economic development of the country.

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Interpretative Decision No. 1 of December 9, 2013, by the Supreme Court of Cassation

The General Assembly of the Civil and the Commercial Colleges of the Supreme Court of Cassation (GACCC of SCC) has adopted an interpretative decision on some disputable issues related to the appellate proceedings regulated by the Civil Procedure Code (CPC).
 
With regard to the issues raised GACCC of SCC has adopted the following:

1. On examining the regularity of the first instance decision, the appellate court may apply an imperative substantive rule even if the violation thereof has not been introduced as grounds for appeal. The appellate instance is not limited to the statements in the appeal when it ex officio sees to the interests of either of the parties to the lawsuit or to the interest of the underage children born of the marriage upon pronouncing the measures with regard to custody, personal relations, child support and use of the family home.

2. The appellate court does not ex officio check for breaches of procedural requirements admitted by the first instance on reporting the case. In case the appeal contains a justified complaint for breaches of procedural requirements admitted by the court of the first instance with regard to the report, the appellate court should give instructions to the parties on the possibility of taking such procedural actions for submitting evidence relevant to the case, which they have omitted to take at the first instance due to absence, incompleteness or inaccuracy of the report and the instructions given by the court. Where the appellate court finds that the qualification given by the first instance is incorrect, and as a consequence inaccurate instructions were given to the parties with regard to the facts subject to substantiation, it should ex officio, without being referred to with such a complaint, ensure the proper application of the imperative substantive rule by giving instructions with regard to the facts subject to substantiation and the necessity to submit relevant evidence.

3. The appellate court must collect the evidence which should be ex officio collected by the court (expert’s statement, inspection, certification), only if a party has brought in complaints regarding a breach of procedural requirements admitted by the first instance, from which it can be inferred that the factual aspect of the case has remained unclear, or the factual conclusions on which the first instance decision is based are unwarranted, or if such evidence is necessary for the ex officio application of the imperative substantive rule.

4. The defendant’s objections against the claim are generally precluded with the expiry of the term for reply to the statement of claim under Art. 131, Para. 1 of CPC, and therefore they cannot be raised for the first time before the appellate court. This also applies to the objections based on limitation of actions and acquisitive prescription. These objections may be introduced for the first time before the appellate instance only if the party has not been able to bring them to the first instance due to a breach of procedural requirements (for example, violation of its right to participate in the first instance proceedings). In that particular part the conclusions in item 6 and item 12 of Interpretative Decision No. 1/2000 of 04.01.2001 under civil case No. 1/2000 of GACC of SCC are not applicable with the new CPC in effect. The objection based on offsetting may be raised for the first time before the appellate court if it is expressed in substantive statement for compensation of two eligible and liquid counter receivables, where they are acquitted to the amount of the smaller one as of the day on which the conditions for their compensability are present. If the counter receivable is disputable, the objection based on offsetting may not be introduced for the first time before the appellate instance. The objection based on right of retention is precluded with the expiry of the term for reply to the statement of claim, where the subject is a non-liquid receivable. Where the receivable is liquid, i.e. established with an enforceable court decision or execution order, as well as where the objection has been filed as an associated right to the counterclaim of the defendant for his receivable, the objection may be introduced for the first time before the appellate instance.

5. When the cassation instance ascertains that the statement of claim is irregular due to discrepancy between the factual part, which contains statements that protection of legal interest should be sought against a particular person, and the petitum directed against another person, the appellate decision is inadmissible and it is subject to revocation, and the case should be referred back for revision to another panel of the first instance court. The conclusions in item 1 of Interpretative Decision No. 1/2001 of 17.07.2001 under civil case No. 1/2001 of GACC of SCC do not apply in the hypothesis described above with the new CPC in force.

6. If in the first instance a compulsory co-party to participate in the proceedings has not been constituted, the appellate court shall revoke as inadmissible the first instance decision and refer back the case to the court of the first instance to revise it with the compulsory co-party’s participation. The conclusions in item 17 of Interpretive Decision No. 1/2000 of 04.01.2001 under civil case No. 1/2000 of GACC of SCC, in the part regarding the compulsory co-party are not applicable with the new CPC in effect.    
    
7. a) The denial of the court of first instance to admit for joint consideration an incidental declaratory relief is not subject to appeal.

b) The ruling denying a request for increase in a claim which is not claimed as partial is subject to appeal.

c) The ruling (the order) of the court of first instance returning the counter statement of claim due to non-performance of the instructions for elimination of its irregularities is subject to appeal on the grounds of Art. 274, Para. 1, item 2 in connection with Art. 129, Para. 3 of CPC.

8. The appellate decision revoking the decision of the court of the first instance and terminating the lawsuit, in case the value of the claim is below BGN 5 000 in civil cases, and below BGN 10 000 in commercial cases, is not subject to cassation appeal due to the limitation under Art. 280, Para. 2 of CPC.

9. a) The appellate court’s ruling which upholds a first instance ruling denying constitution of a third party as an intervenor is not subject to cassation appeal.

b) The appellate court’s ruling which upholds a first instance ruling denying intervention of right is subject to cassation appeal.  
    
c) The appellate court’s ruling which upholds a first instance ruling for termination of proceedings due to lack of suability (Art. 15, Para. 2 of CPC) or lack of jurisdiction over the dispute (Art. 121 of CPC) is subject to cassation appeal on the grounds of Art. 274, Para. 3, item 1 of CPC. The appellate court’s ruling which upholds a first instance ruling rejecting a challenge for lack of suability, respectively lack of jurisdiction, is not subject to cassation appeal, as it does not fall within the category of acts as stipulated in Art. 274, Para. 3, item 1 and item 2 of CPC. The ruling under Art. 122 of CPC issued under a dispute on jurisdiction between courts is not subject to appeal, as it does not fall within the acts under Art. 274, Para. 1, item 1 and item 2 and Art. 274, Para. 3, item 1 and item 2 of CPC.

10. The appellate court’s decisions returning the cassation appeal on any of the grounds under Art. 286, Para. 1 of CPC or the private cassation appeal on any of the grounds under Art. 262, Para. 2 in connection with Art. 275, Para. 2 of CPC should be solely adopted.    

The decision has been signed with dissenting opinion by some of the judges.

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Interpretative Decision No. 3 of December 19, 2013, by the Supreme Court of Cassation


The General Assembly of the Civil College of the Supreme Court of Cassation (GACC of SCC) has adopted an interpretative decision on some disputable issues related to the partition proceedings regulated by the Property Act (PA), the Inheritance Act (IA) and the Civil Procedure Code (CPC).

With regard to the issues raised, GACC of SCC has adopted the following:

1. It is admissible the claim for ascertainment of nullity of a contract for voluntary partition within the meaning of Art. 75, Para. 2 of IA to be individually filed within separate claim proceedings.

2. A contract stipulating agreement achieved between co-owners for partition of the co-owned property by placing a share of a real estate to one of them, against which an obligation is undertaken for maintenance and care of another co-partitioner, is a contract for partition which is not void, if concluded in the due form pursuant to Art. 35, Para. 1 of PA.
 
3. In case of disposition of the disputed right by a co-owner (co-partitioner) in favour of another person in the course of the partition proceedings, in the phase of admitting the partition, the provisions of Art. 226 of CPC shall apply.

A person that has acquired rights by virtue of a disposition deal in the first phase of the partition proceedings after submission of the partition claim may replace his/her grantor only subject to the consent of all co-partitioners. After entry into effect of the decision for admission of the partition in the phase of its execution, the acquirer participates through his/her procedural substituent (the transferor) if the acquirer does not express his/her will to enter the proceedings as an assisting party.    
 
The acquirer may participate as a principal party if he/she enters in the partition proceedings pursuant to Art. 225 of CPC. The acquirer will be bound by the decision for execution of the partition, regardless of whether he/she has entered in the proceedings, has replaced the transferor or has participated in the proceedings through his/her procedural substituent. The co-ownership will be deemed terminated with respect to the latter as well, regardless of whose share the property will fall into.
 
4. The succession of the inheritance under inventory is a material prerequisite for the realization of the right to request reinstatement of a reserved share of the inheritance against a legatee or grantee who was not summoned for inheritance.

5. The persons benefiting from the testamentary disposition or grant may raise an objection in the procedure for reinstatement of a reserved share of the inheritance under Art. 30 of the IA for not meeting the deadline under Art. 61, Para. 1 of IA for succession of the inheritance under inventory. An objection for not meeting deadline under Art. 61, Para. 1 of IA could not be raised with regard to the persons specified in Art. 61, Para. 2 of IA.

The decision has been signed with dissenting opinion by some of the judges.

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