29 March 2013
The beginning of 2013 saw another milestone not only for the litigation team of Dimitrov, Petrov & Co. Law Firm, but for Bulgarian legal practice in general. TheSupreme Administrative Court issued a ruling suspending the execution of provisions of a secondary legislative act, which had happened only once before in the history of Bulgarian administrative jurisdiction. Thereby a part of the regulations of the Terms and Procedure for Conclusion of Individual Contracts for Allotment and Payment of Medicinal Products under Art. 262, Para 5, item 1 of the Medicinal Products in Human Medicine Act, of Medical Goods and of Dietary Foods for Special Medical Purposes, Coordinated between the National Health Insurance Fund and Bulgarian Pharmaceutical Union on the Grounds of Art. 45, Para 15 of the Health Insurance Act have become the first provisions of a secondary legislative act, adopted by an authority, directly governed by the central administration, with pronounced stay of execution.
The court allowed the stay of the aforementioned secondary legislative act as it was necessary to protect the public interest of providing unlimited access to medicines, reimbursed by the National Health Insurance Fund, at the same time ensuring also the protection of public health, which is a national priority, guaranteed by the Constitution of the Republic of Bulgaria.
In mid-March the higher instance of the Supreme Administrative Court upheld the ruling so the allowed stay has become final. It shall remain in force until the case is judged upon its merits.
The team of industrial property representatives of Dimitrov, Petrov & Co. Law Firm has recently expanded by another two members. In the middle of March our colleagues Emil Tumbev and Pavlina Ivanova successfully passed the exam held annually by the Patent Office of the Republic of Bulgaria. As soon as the formal registration procedure with the BPO is accomplished they will be entitled to represent and defend the rights and legitimate interests of natural and judicial persons in the area of industrial property before BPO, WIPO and OHIM.
Act for Amendment and Supplement to the Value Added Tax Act (AASVATA)
AASVATA was promulgated in the State Gazette, issue 23 of March 8, 2013.
The main amendments have been made to Art. 118, regulating the procedure for issuing and handling cash register receipts, till receipts, and system receipts.
Art. 118, Para 1 introduces a distinction between the concepts of the terms fiscal cash receipt issued by a fiscal device (till receipt) and cash receipt from an integrated automated system for business activity management (system receipt).
The amendments to Art. 118, Para 2 are associated with the requirement that fiscal devices and integrated automated systems for business activity management must have technical capacity for remote connection to the National Revenue Agency (NRA). The maintenance of this remote connection must now comply with the requirements of the Bulgarian Institute of Metrology while previously it had been entrusted to the State Agency for Metrology and Technical Surveillance.
The changes made to Art. 118, Para 4 provide that the Minister of Finance shall issue an ordinance determining:
1. The terms, procedure and manner of approval, commissioning, accounting and storage of documents issued by a fiscal device or an integrated automated system for business activity management.
2. Maintenance, support and monitoring of the fiscal device or integrated automated system for business activity management.
3. Requirements and procedure for remote data transfer to the NRA.
4. Mandatory requisites which must be present in the issued till and system receipts.
5. The type of remote data submitted; the form and terms for submission.
Art. 118, Para 5 provides for the users of a fiscal device or an integrated automated system for business activity management to conclude written contracts for maintenance with companies registered by the Bulgarian Institute of Metrology.
The new Paragraph 7 of Art. 118 provides that Para 1 and Para 6 shall not apply when the following conditions are cumulatively satisfied:
1. Payments for supplies/sales of liquid fuels are made only by bank transfer or by postal money order.
2. The trader has its own measuring system, which allows the reliable monitoring of the amount of fuels at any time.
3. Upon demand the trader provides access to its own measurement system and the data therefrom.
4. The trader submits data from its own measurement system to NRA.
The changes in Art.118, Para 8 provide that taxable persons, who, for the purposes of an independent economic activity, refuel with liquid fuels vehicles, engine-powered machines or other equipment for their own use, are required to register and report such refueling according to the provision of Para 4. This paragraph does not apply to individuals – recipients of a liquid fuels supply, where the supplier of such a supply can be described as an end retailer and the recipient does not resell the liquid fuels subsequently. From the scope of this text are also excluded cases where the supplier of the supply is not an end retailer, but meets the requirements of Art. 118, Para 9 AASVATA.
The amendments to Art. 118, Para 10 provide that a taxable person – supplier of liquid fuels is obliged to submit information to the NRA of the supplied quantity of liquid fuels and the movement of supplied or received quantities of fuel, as well any changes therein. The data is submitted electronically with a qualified electronic signature either on the date of the tax event or on the date of occurrence of any change in the circumstances.
A new Paragraph 11 of Art. 118 is created, according to which the information under Para 10 shall not be submitted if:
1. The supplier and the recipient are under a deferred payment regime.
2. The supplied liquid fuels are declared before the National Customs Agency and exempted from excise duty under the Excise Duties and Tax Warehouses Act.
3. The Supplier accounted for the supplies via its electronic system with fiscal memory.
4. The recipient is an end user.
Interpretative Decision No 11 of March 21, 2013 by the Supreme Court of Cassation
The General Assembly of the Civil Division of the Supreme Court of Cassation (GACD of SCC) adopted an interpretative decision on the following issue: ‘Is a notary deed ascertaining a title right over a real estate under Art. 587 of the Civil Procedure Code (CPC) bound with material evidential value within the meaning of Art.179, Para 1 of the CPC in regard of ascertaining the ownership of the title right by the notary public?’ With regard to this issue, the GACD of SCC took into consideration the following:
A notary deed issued under the procedure set in Art. 587 of the CPC is bound with evidential value within the meaning of Art. 179, Para 1 of the CPC in respect to the actions performed before the notary public: that the deed was issued by the specified notary public, at the time and place specified, that the documents described have been presented, and that the notary public has issued a statement ascertaining the ownership. This material evidential value applies to all third parties and may be disproved by challenging the authenticity of the notary deed as written evidence, i.e. under the procedure set in Art. 193 of the CPC.
The actions of a notary public in the procedure under Art. 587 of the CPC are not certifying, as they are in other notary procedures, but decisive. The notary does not certify legal facts but rules on the existence of a right. Therefore, the ascertaining of the ownership of the title right in a notary deed pursuant to Art. 587 of the CPC constitutes a legal conclusion of the notary public not a certification of a legal fact, therefore it is outside the evidential value of the notary deed as defined in Art. 179, Para 1 of the CPC. Since the notary procedure is unilateral and does not settle a legal dispute, the notary deed under Art. 587 of the CPC can be challenged by any person who has a legitimate interest in claiming that the holder of the deed is not the owner. This challenging of the deed is not subject to the provisions of Art. 193 of the CPC, as it does not concern the authenticity of the document – the notary deed, but the existence of the right certified in the deed. The challenging party, which does not have a document proving ownership, bears the burden to prove the non-existence of the title right ascertained by the notary public.
With a view to the above-mentioned the GACD of SCC adopted the following:
The notary deed ascertaining a title right over a real estate under Art. 587 of the CPC is not bound with material evidential value within the meaning of Art. 179, Para 1 of the CPC with regard to ascertaining the ownership of the title right, since material evidential value is inherent to official documents certifying facts. When challenging the title right ascertained with the deed the challenging party bears the burden of proof, as the procedure under Art. 193 of the CPC is not applicable.
The Decision has been signed with dissenting opinion by some of the judges.
Interpretative Decision No 12 of March 11, 2013 by the Supreme Court of Cassation
The General Assembly of the Civil Division of the Supreme Court of Cassation (GACD of SCC) adopted an interpretative decision on the following issue: ‘What is the starting date of the term for appealing a decision pronounced under the terms Art. 315, Para 2 of the Civil Procedure Code (CPC), and does the delivery of copies of the decision pursuant to Art. 7, Para 2 of the CPC alter in such case the starting date of the term for filing of appeals specified in Art. 315, Para 2 of the CPC?’ With regard to this issue, the GACD of SCC took into consideration the following:
The purpose of Art.315, Para 2 of the CPC is for the parties to know on what date can they inform themselves about the outcome of the litigation as well as examine the contents of the court decision, as from that date until the deadline for appeal they have at their disposal the term specified in Art. 259, Para 1 of the CPC and Art. 283 of the CPC. In cases heard under this procedure the sending of a copy of the decision to a party pursuant to Art. 7, Para 2 of the CPC is of informative nature only and does not alter the initial date for filing of an appeal. The rule of Art. 315, Para 2 of the CPC is applicable when the court specifies during an open hearing of the case the date on which the decision shall be announced and does so not later than the date specified in advance. The starting point of the term for appeal in this case is the date specified during the last hearing of the case. When the decision is announced after the date specified before the parties by the court, the initial date of the term for appeal is the date of serving the notification with which the parties are notified for the decision and a copy of it is delivered to them. In this case the rules of the general claim proceedings shall be applied and this shall be explicitly specified by the court. In the event that the court delivers to the parties a copy of the decision under the procedure set in Art. 7, Para 2 of the CPC, which states a term for appeal different from the one announced under Art. 315, Para 2 of the CPC, then pursuant to Art. 62, Para 3 of the CPC the initial date of the term shall be the most favourable for the party starting moment.
With a view to the above-mentioned the GACD of SCC adopted the following:
The beginning of the term for appealing of a decision announced in accordance with Art. 315, Para 2 of the CPC is the date specified by the court as the date for announcement of the decision. The delivery of copies of the decision pursuant to Art. 7, Para 2 of the CPC alters the initial date of the term for filing an appeal only if a copy of the decision with different instructions has been sent to the parties or if the decision is announced after the previously specified date pursuant to Art. 315, Para 2 of the CPC.