20 years together

January 2012

31 January 2012

On occasion of 28 January - the Personal Data Protection Day, and the tenth anniversary of the establishment of the Personal Data Protection Commission, the week from 23 to 28 January 2012 is announced to be Personal Data Protection Week. In this regard, the Commission developed a special website http://www.cpdp.bg/10-godini/ to inform the society of the initiatives that will take place within the Personal Data Protection Week, as well as to increase the public awareness of the personal data protection rights of natural persons.

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Act for Amendment and Supplement to the Commercial Register Act

By the amendments passed with the Act for Amendment and Supplement to the Commercial Register Act, promulgated in the State Gazette, issue 34 of April 29, 2011 (for more information, please refer to the E-digest of Dimitrov, Petrov & Co. for April – June 2011), significant modifications to the registry procedure before the Registry Agency have been introduced. What is more, important supplements have been made, with the objective to resolve unavoidable issues arising with the expiration of the deadline for sole proprietors, commercial companies, branches of foreign traders and cooperatives to be re-registered. For most of the new provisions, entry into force from January 01, 2012 was foreseen.

A number of unresolved problems detected with the approaching and after the entry into force of the new provisions, raised the need of additional legislative work. As a result, two new Acts for Amendment and Supplement to the Commercial Register Act have been promulgated in the State Gazette, issues 105 from December 29, 2011 and 25 from March 27, 2012, respectively.

On January 01, 2012, the new provision of Art. 22, Para 4 of the Act entered into force. It gives the applicant the opportunity to remove irregularities from applications filed with the Commercial Register. The Registry Agency officials now should give instructions on the removal of the irregularities in order to avoid the ruling of refusals – the rules until now provided that in case of an irregularity, the requested registration shall be refused. The new provision practically removes the need for the respective state fee to be paid again in case the official rules a refusal on the filed application, and the irregularities would be removed within the same procedure.

The practical application of the described regulation from January 1, 2012 turned out to be impossible because of the lack of technical capacity of the Commercial Register’s information system to enable the officials to give instructions. Therefore, the entry into force of the amendment has been postponed for June 01, 2012.

With the beginning of 2012, the sole proprietors, the commercial companies, the branches of foreign traders and the cooperatives have lost the opportunity to re-register and to continue their business activity. The sole proprietors and the branches of foreign legal entities have been stricken off. The activities of the commercial companies and the cooperatives have been terminated as of January 01, 2012.

With the amendments of 2011, the possibility was created for any of specifically listed third parties to request the re-registration and initiation of a liquidation procedure under the Commercial Act of non re-registered companies after January 01, 2012. With the new amendments and supplements to the regulation regarding the non re-registered companies, promulgated in March 2012, the opportunity to apply for re-registration and initiation of a liquidation procedure has been given to the legal representatives of the respective companies as well.

The provisions of the Commercial Register Act that entered into force were deficient also with regard to the status of entities that had requested re-registration before the expiration of the deadline, but such was refused by the Registry Agency and the act for refusal has entered into force. This deficiency was removed and such entities have been given the status of non re-registered entities.

The new amendments (from March 2012) provide the opportunity for the non re-registered commercial companies and cooperatives to file for insolvency, whereas the original texts did not allow this, as the law was forbidding to such entities to initiate any court actions.

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Interpretative Decision No 3 of January 16, 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 regarding the following issue:

“Is the assessment made by an employer on the question ‘which of the employees has higher qualifications and better performance’ subject to judicial review within proceedings based on a claim on the grounds laid down in Art. 344, Para 1, item 1 of the Labour Code (LC)?” With regard to this issue the GACC of the SCC took into consideration the following:

The right of selection is a subjective potestative substantive right exercised by the employer in the presence of specific grounds for dismissal under Art. 328, Para 1 of the LC, namely: liquidation of a part of the enterprise, reduction of the staff or decreased workload. Being an activity of exercise of a subjective right, the assessment of the criteria for qualification and performance level of the work assigned is executed according to the legal provision, it is intended to satisfy interest set by law and to lead to the results specified in the provision. Therefore, the assessment should be executed according to the law rather than by expedience.

Being a subjective right, the execution of staff selection is aimed at a purpose specified by the legislator: to be in the interest of production or service, and is also aimed at certain specific results: those who have higher qualification and work better to remain at work. The strict application of law, which is the direct purpose of the judicial review, is not limited to the conclusion on the formal application of the criteria under Art. 329, Para 1 of the LC by the employer, but also includes verification of the compliance with the same criteria of assessment adopted by the employer and challenged by the employee.

The criteria under Art. 329, Para 1 of the LC have objective elements and their observance could be ascertained with all instruments of evidence pursuant to the Civil Procedure Code. When exercising the right of selection, the assessment of the parameters under Art. 329, Para 1 of the LC is not subjective or based unconditionally on personal notions formed by immediate perceptions of the employer and by general knowledge of all labour functions, but it is an assessment of legitimacy, expressed in compliance of the parameters adopted by the employer upon the legal criteria with the actual qualities of the employee. This assessment should be substantiated with information collected about the participants in the selection.

The abuse of rights has no impact on the right of the employee to challenge the lawfulness of the dismissal, respectively the lawfulness of the selection, so the absence of abuse does not constitute grounds for exclusion or exercise of the judicial review regarding the criteria under Art. 329, Para 1 of the LC. If the employer has also performed the actual abuse of rights, the affected employee could seek other protection in order to achieve the lawful consequences of the abuse of rights.

With regard to the issue the GACC of the SCC adopted the following:

The assessment of the employer under Art. 329, Para 1 of the LC, namely: which of the employees has higher qualifications and better performance, is subject to judicial review within proceedings based on a claim on the grounds laid down in Art. 344, Para 1, item 1 of the LC during the exercise of which the court should verify whether the assessment adopted by the employer upon the legal criteria under Art. 329, Para 1 of the LC is based on employees’ actual qualification and performance level of the work assigned.

The abuse of right of selection performed by an employer in assessing who works better is not a criterion for exercise of judicial review with regard to the selection performed.

The decision was signed with dissenting opinion by one of the judges.

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Act for Amendment and Supplement to the Labour Code

In the State Gazette, issue 7 from January 24, 2012 the Act for Amendment and Supplement to The Labour Code (LC) was promulgated.

Some amendments are made in Art. 34 and Art. 35 of the LC, regarding the requirements for representation of employees’ unions and employers’ unions at national level. According to the new criteria, in order to be recognized as representative at a national level, the unions, are required to have at least 75,000 members and local bodies at least in one quarter of the municipalities in the country. Employers’ unions have to unite branch or sectoral structures and undertakings with at least 100,000 employees with an employment contract.

In the Employment Promotion Act a new Chapter 8 “a” about the order and conditions for registration of undertakings that provide temporary employment is created. The legal definitions of the terms “undertaking providing temporary employment” and “user undertaking” can be found in the newly created Articles 17 and 18 of the Additional Provisions to the LC. It is envisaged that the above-mentioned undertakings can operate when they are registered with the Employment Agency and after the issuance of a relevant certificate. The Employment Agency keeps a public register of the certificates issued. In this issue of the SG there is also an example of an application for registration of an undertaking providing temporary employment.

A new Section VІІІ “c” is created in Chapter Five of the Labour Code, which regulates the supplementary conditions for employment by an undertaking that provides temporary employment. This section settles the relations that arise when an employee is sent from an undertaking that provides temporary employment to a user undertaking under the guidance and control of the first undertaking. It also stipulates the employment contract between the employee and the undertaking that provides temporary employment, the obligations of this undertaking, the obligations of the user undertaking and the rights and obligations of the employee to either of the undertakings. In Articles 121 and 127 of the LC new paragraphs are introduced, regarding the cases, when an employee is sent to work abroad by an undertaking that provides temporary employment.

With Art. 167 “b” the legislator creates new rights for employees who return to work after a temporary leave under Articles 163-167а (due to pregnancy, child-birth, child-raising). The employee now has the right to offer his/her employer a change of the duration and the distribution of his/her work time for a definite term in order to allow him/her to successfully reconcile his/her family duties and employment obligations.

By virtue of the new Art. 414a of the LC, a person who provides labour without an employment contract is sanctioned with a fine, which is transferred to the funds of the state social insurance and the National Health Insurance Fund.

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Ordinance No 1 of January 25, 2012 on the requirements to advertising of medicinal products

Ordinance No 1 of January 25, 2012 on the requirements to advertising of medicinal products (hereinafter referred to as the Ordinance) was promulgated in the State Gazette, issue 10 of February 3, 2012.

The Ordinance applies to all types of advertising of medicinal products.

The advertising intended for the public, and the advertising campaigns for vaccination, specified in Art. 248 of the Medicinal Products in Humane Medicine Act (MPHMA) may be conducted only after obtaining permission from the Executive Director of the Bulgarian Drug Agency (BDA) or in the presence of implied consent under Chapter XI of the MPHMA and this Regulation. Advertising to medical professionals may be commenced after filing a notification to the BDA. Only product information approved by the BDA may be used for advertising homeopathic medicinal products.

In Art. 5, Para 2 of the Ordinance requirements for the content of advertising of medicinal products intended for the public are set out, among which is the compulsory indication of the number and date of authorization for advertisement issued by the Executive Director of the BDA or the number and date of the application under Art. 251, Para 1 of the MPHMA when there is implied consent. In Para 3 of the same Article a possibility is provided for the BDA to require the composition of compound medicinal products, as well as certain information related to the safe use of the medicinal product to be presented in the advertisement. Para 4 introduces a requirement for video advertisements certain content to be written in still large legible characters in the form of a static text which is read by a speaker. In Para 6 are listed the cases in which advertisement for the cases when advertising to the public is not allowed are stipulated. Art. 8 introduces a prohibition on the distribution of samples of medicinal products to the public.

Section III of the Ordinance contains provisions regulating the advertising campaigns of vaccination under Art. 248 of the MPHMA.

The regulation of advertising of medicinal products intended for medical professionals is included in Section IV and in Art. 10 the requirements for its content are listed. Art. 11 introduces a prohibition on the placement of advertising materials intended for distribution among medical specialists in areas accessible to patients. The Ordinance specifies that informative articles, films, brochures or posters used at events for scientific purposes must be made in accordance with the latest approved brief characteristics of the medicinal product.

The provision of samples of medicinal products is regulated in Section V of the Ordinance. Holders of marketing authorizations may as an exception provide free samples only to medical professionals qualified to prescribe medicines under the conditions specified in the Ordinance. It is required that a system of accountability and control of the provided samples to be maintained and data from it are to be provided upon request by the BDA.

The Ordinance is issued pursuant to Art. 249 of the MPHMA and revokes Ordinance No13 of 2000 on the procedures for approving the advertising of medicinal products.

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