In view of the unification of jurisprudence in the presence of conflicting court decisions on the issue, the President of the Supreme Bar Council of Bulgaria Ralitza Negencova sends a statement on the matter with a request to be given an interpretative decision on the matter by the Supreme Court by interpretative case № 7/30 09. 2013.
Members of the Supreme Bar Council
Does it owe a penalty for delay under Article 92, paragraph 1 of Obligations and Contracts Act, when the contract is terminated due to contractor’ fault?
The question referred was opened due to following controversial cases:
1. First solution was given by Decision № 206 of 05.05.20010 on by Commercial case № 18/2009 of the SCC, in which is assumed that when the parties have agreed default of late performance of the debtor’s obligation, then the contract is terminated by the complete failure, the debtor is liable to pay the agreed penalty by the claim on the ground art. 92 of the Obligations and Contract Act.
Considerations set out in the reasoning of the decision are that even on the basis of Article 88, paragraph 1, of the OCA sentence 1 termination of the contract leads to cancellation of obligations taken by the parties does not mean that the creditor is deprived of the right to claim compensation for non performance or damages by argument of art. 88, para 1, sentence 2 of the OCA.
2. Second solution was given by Decision №17 on 19.03.2010 by Commercial case № 414/2009 of Supreme Court of Causation. This decision accepts that responsibility for damages caused by the cancellation of a contract in the form of penalty determined at the conclusion of the contract may be claimed only if such a default has been agreed to compensate the negative interest violations for the upstanding party, as such a possibility of compensation generally permitted in Article 88, paragraph 1, of the OCA sentence 2. According to the court, in case of termination of the contract cannot enforcement being sought, nor have nonperformance and therefore if default has been agreed for the poor (slow) performance, it will not be due.
Тhe President of the Supreme Bar Council considered second solution for the proper one, explicitly making it clear that the issue in the two cited above hypothesis decision is not the case of termination of the contract with the continuous or periodic performance where the termination is effective only in the future, according to the provision of Article 88, paragraph 1, of the OCA sentence 2.
The arguments for this conclusion are as follows:
1. Breach of a contractual obligation exists in any case where the debtor does not perform exactly as agreed, i.e. both full default as well as accomplishing inaccurate, as the case may be inaccurate failure could be both quantitative and qualitative, and also in respect of time - the case of Article 79, paragraph 1 of OCA.
2. Breaching of contract is giving rise to the liability of the debtor, which correspond to certain rights of creditor. Thus, under Article 79, paragraph 1 and paragraph 2 of the Obligations and Contracts Act in case of default, the creditor is entitled to claim from the debtor (1) or performance with compensation for the delay or (2) compensation instead of performance, but in this second hypothesis, the debtor can offer initially due along with compensation for the delay if the contractor still has an interest in the implementation.
3. The forfeit is a clause into a contract that is associated with possible failure to meet obligations and compensation for damages of non-compliance. In this sense, the forfeit is secondary in nature, it is always associated with another primary obligation under the contract. According to the legal definition of forfeit in Article 92 of the Obligations and Contracts Act this contract term goals, on the one hand, to ensure the proper performance of the obligation and, on the other hand, serve as compensation for the damages of a possible default without the need such a damage to be proved either as type or size.
4. If based on nonperformance the creditor is suffering greater damage, he may claim compensation for the excess over the agreed default - Article 92, paragraph 1, of the OCA sentence 2. But if a forfeit is excessive compared to the actual damage or if the obligation is fulfilled partly or incorrect, the debtor may apply to the court with a request to reduce its size - Article 92, paragraph 2 of the OCA.
5. When the contract is bilateral and is canceled due to the fault of the debtor (Article 87 of OCA) according to Article 88, paragraph 1 of the OCA termination is retroactive, i.e. retroactively drop out parties’ commitments and mutually they owe returning of given by the contract (Article 55, Paragraph 1, Proposal. 3 of OCA). Once the commitments are dropped and not performance is owed, it should logically nonperformance and dropout obligation to not constitute grounds for liability of the debtor. But the law takes account of the fact that it is the debtor’s wrongful conduct led to termination of the contract, thus expressly provides that in the case of termination, the creditor is entitled to compensation for damages from the breach of contract.
6. In view of the above, in bilateral agreements, various events of default are possible depending on the nature of the obligations and also depending on the different situations of failure - inadequate performance or complete nonperformance. Accordingly, of any such cases of default, defaulting party would be responsible for damage caused by the breach, the parties may agree in advance what compensation would be due as agreed on a case for default - for a delay penalty and the penalty for complete nonperformance. And if the law expressly provides for the right to compensation for damage caused by failure in termination of the contract, the parties could therefore still at the conclusion of the contract to understand the compensation of such damages as agreed penalty for failure, leading to termination of the contract. This way for the correct party there will no be need to prove damage suffered by the termination of the contract and receive the agreed compensation.
7. In conclusion, applying the principle of contractual freedom (Article 9 OCA) parties to a bilateral contract may agree both as compensation for inaccurate (delayed) performance and default for failure, leading to termination of the contract. Accordingly, in an action for the award of default, the court in interpreting the contract and seeking the actual will of the parties (article. 20th OCA) should primarily clarify whether the alleged penalty was agreed for the case of poor performance or in the event of default giving rise to the termination of the contract. In the latter case, a penalty clause will be implemented despite the abolition of the contract retroactively, because the possibility of damages by such breach is expressly provided by law.
The Court of Justice held that the single market ability of citizens of the Union to choose the Member State in which they wish to receive the title and the Member State in which they intend to practice their profession is inherent in the exercise of the right guaranteed by the European Union fundamental freedoms.
Freedom of movement for EU lawyers
In Joined Cases C-58/13 and 59/13 (Torresi / Consiglio dell’Ordine degli Avvocati di Macerata) of 17 July 2014 states that the fact that a national of a Member State holding a university degree acquired in his country and later has gone to another Member State in order to obtain a lawyer license and subsequently returned to their country to practice legal profession under the professional title obtained in another Member State is the specification of one of the objectives of Directive 98 / 5 / and do not constitute an abuse of the right of establishment.
EU Court recalls that in order to facilitate the continuous practice of the legal profession in a Member State other than the State in which the professional qualification was obtained, EU law introduces a mechanism for mutual recognition of titles of migrant lawyers wishing to practice under the title of his of origin.
Thus the EU legislature intends to eliminate inequalities in national conditions for entry, underlying inequalities and obstacles to free movement. Consequently, Directive 98/5 / EC aims at full harmonization of the conditions applicable to the right of establishment.
And that of course applies not only for people practicing the profession of lawyer, but also for other professions.
Free movement of working people is a key, basal principle of the Treaty enshrined in Article 45 of the Treaty on the Functioning of the European Union and developed by EU secondary legislation and the Case law of the Court of Justice.
The European Court of Human Rights is one of the international jurisdictions with established practice recognizing the right of non-pecuniary damages to entities that deserves to be described.
Based on Art. 34 of the Convention on Human Rights, which expressly provides for the right of appeal of NGOs, in 1979 the Court recognized the legitimacy and companies.
Since violations of the Convention are awarded benefits primarily in respect of non-pecuniary damages logically Strasbourg began to recognize them and to legal persons.
Over the years, in various judgments, the Court recognized that there are non-pecuniary damage suffered by non-governmental organizations, political parties and companies.
Compensation may be simply expressed in a violation of the Convention, but there may take monetary expression.
During all these years the judicial practice in Bulgaria adheres to the opposite understanding that legal persons are not entitled to moral damages.
However and finally, in 2013 Interpretative Decision ? 4 SCC recognizes that legal persons are entitled to moral damages, at least when the legislature expressly provides.
Longstanding practice of the SCC is criticized in an article by Maria Lazarova, published in the blog Capital newspaper, in which the author recommends that it be abandoned as outdated and obsolete trends at national, European and global level.
In this articles are used materials from Lakorda.
Non-pecuniary damage for companies
Possible business formations is a matter regulated under Bulgarian Commercial Act. There are situated the rules with regards of incorporation, management, relation between shareholders and managers, insolvency, bankruptcy, liability and so on.
Issues not addressed in the Commercial Act are redirected to the general civil legislation of the Republic of Bulgaria.
Starting a business in Bulgaria is very easy and stress free, but which form may fit your needs. Well, that is what we will try in this post – to help you better understand the differences of possible business formations allowed by Bulgarian commercial legislation.
Normally these are business formations very similar to those known to other countries over the world. So let’s start with some general information.
19th century Bulgarian Merchants
The law defines the term Merchant as follows:
For the purposes of this Act a merchant shall mean any natural or legal person engaged by occupation in any of the following transactions:
1. purchasing goods or other chattels for the purpose of reselling them in their original, processed or finished form;
2. sale of one’s own manufactured goods;
3. purchasing securities for the purpose of reselling them;
4. commercial agency and brokerage;
5. commission, forwarding and transportation transactions;
6. insurance transactions;
7. banking and foreign-exchange transactions;
8. bills of exchange, promissory notes and cheques;
9. warehousing transactions;
10. license transactions;
11. supervision of goods;
12. transactions in intellectual property;
13. hotel operation, tourist, advertising, information, entertainment, impresario and other services;
14. purchase, construction or furnishing of real property for the purpose of sale;
Merchants are as well:
2. The cooperatives, except housing cooperatives.
3. Any person which has established a business, which in accordance with its purposes and volume requires that its activities be conducted on a commercial basis even if not listed under para 1, shall also be deemed a merchant.
Well, Who Are Not Merchants:
The following shall not be deemed merchants:
1. Natural persons engaged in farming;
2. Artisans, persons providing services through their own labor or members of the professions, except where their activity may be defined as a business within the meaning of Article 1, para 3;
3. Persons providing hotel services by letting rooms in their own home.
Every Merchant is obligated to keep accounts in accordance with Accountancy Act.
Well, finally we are ready to go with possible company formations.
SOLE PROPRIETOR (also known as SOLE TRADER)
Any natural person possessing capacity whose domicile is in the country may register as a sole proprietor, except the following:
1. who is bankrupt and his rights have not been restored;
2. who has intentionally gone bankrupt and has left unsatisfied creditors;
3. any person who has been convicted for fraudulent bankruptcy;
4. any person who has occupied the position of a manager, or an ex member of a managing or controlling body of a company that was suspended due to insolvency, in the last two years prior to the date of the decision to declare insolvency, in case there were unsatisfied creditors;
5. who had been manager, member of managerial or supervisory body of any company, in regard to which non-performance of obligations to constitute and hold stocks under the Crude Oil and Petroleum Products Stocks Act at levels, prescribed for it, had been ascertained by an effective penal decree.
A sole proprietor shall be registered on the basis of an application into Commercial Registrar.
SOLE PROPRIETOR liability is unlimited. He is responsible with all his assets, even personal – real estate, land, etc.
There are two main group of companies based on their ownership:
1. PUBLIC ENTERPRISE MERCHANT – state owned or municipality
2. PRIVATE COMPANIES
A company is an association of two or more persons for effecting commercial transactions with joint means. In cases provided by a law a company may be incorporated by one person. Companies are always legal persons – entity.
There are few types of companies provided be law:
1. General partnership;
2. Limited partnership;
3. Limited liability company;
4. Joint-stock company;
5. Partnership limited by shares.
A general partnership shall be a company formed by two or more persons for the purpose of effecting commercial transactions by occupation under a joint trade name. The partners shall be liable jointly and severally and their liability shall be unlimited.
A partnership’s articles shall be drawn up in writing with notarized signatures of the partners.
Each partner shall be entitled to take part in the management of the partnership’s business, except when management has been assigned with the articles of partnership to one or several of the partners or to a third party.
When taking an activity against the partnership the claimant may also name as defendants one or more of the partners. Forcible execution shall be directed first against the partnership, and, in case of impossibility for satisfaction, against the partners.
Second Part should be available soon and will cover:
Limited liability company;
Partnership limited by shares.
Into the Interpretative Decision N: 1 of 12.09.2013 of the SCC has been given answer to number of questions related to the powers of supervisory court instances in appeals of rulings and decisions ahead.
Supreme Court Judges clarify the scope of the second instance and indicate that the appeals court is not limited in its application of that when the next official interest of any party to the case.
In this sense, the SCC held that the verification of the correctness of the judgment at first instance may be given mandatory substantive rule even if its violation was not introduced as a ground for appeal.
Examining the activities of the appellate court, the SCC stated that it is not a repeat of first instance, only a continuation and therefore the appellate court did not follow its own motion made by the first instance court procedural irregularities in reporting the case.
Supreme Court Judges indicated that the appellate court is required to gather evidence that is collected automatically by the court if it is implemented complaint allowed in the first instance procedural violation or if the evidence is necessary for official application of mandatory substantive rules.
Supreme Court Judges pay attention to the question of how are current principal positions displayed in Interpretative Decision N: 1 of 2000. Has expressed the opinion that under the new Civil Procedure Code objections to repayment and acquisitive prescription can be introduced for the first time on appeal only if the litigant due to violation of the court rules, could not have told them first instance.
Current interpretations are on when can be claimed for the first time on appeal and set-off defense of lien.
In connection with the constitution of the litigants in the interpretative decision stated that if the first instance was not constituted as a necessary party whose participation in production is required, the appellate court should invalidate as inadmissible first instance decision and remit the case to the trial court for new hearing with the participation of the necessary party.
The cassation instance should invalidate the appellate decision if it finds that the application is incorrect because a contradiction between the factual part, which sets out the allegations pointing interest in bringing proceedings to seek protection against a specific person, and whatsoever the relief sought against another person.
With regard to acts of first instance, subject to appellate review, the SCC determined that cannot be appealed first instance court‘s refusal to accept a joint processing step in the action.
On the other hand, may appeal, rejecting a request to increase the claim is not brought as a partial, and the definition / order of the first instance court, which was returned due to a cross-application outstanding guidelines to eliminate its irregularities .
As regards the scrutiny by the cassation instance, are not subject to such acts CFI judgment that is discharged and the case was terminated if the claim is below 5000 lev in civil cases, respectively, less than 10 000 Levs in commercial matters.
Subject to cassation appeal the acts of the appellate court, which upheld the lower court‘s ruling, which was denied mainly constituted of an intervener, but not those with which it has upheld the lower court definition of refusing to constitute a third party facilitator.
By continuing to lists acts of the appellate court on which the cassation instance may control, the SCC stated that these are the definition of the appellate court confirming order of the first instance to terminate the proceedings because of lack of jurisdiction of the dispute, but not those confirming order of the Court, which was rejected based on objection of lack of jurisdiction.
Shall not be subject to appeal and the definition on the grounds of art. 122 of the Civil Procedure Code given in a dispute over jurisdiction between the courts.
Questions regarding transfer of sentenced persons are governed by the Criminal – Procedure Code (CPC) in Chapter 36, Section I.
The transfer of a sentenced person from abroad to Bulgaria, ie when the Bulgarian state is executing intervening Criminal Court with a view to implementing the procedure for resolving issues related to the execution of judgment.
Response to the key issues relating to the implementation of an additional penalty fine imposed by the foreign court is given in Interpretative Decision N: 3 from 12.11.2013.
The judges indicated that there is no legal basis on which to display the unequal treatment of persons with the transfer of an EU Member State and from outside it.
The decision held that, in proceedings of art. 457 of the Code further penalty fine is considered performance when sentence is imposed by a foreign court of a country outside the European Union to the marginal maximum penalty provided for under sanction of the proper rate of the Penal Code, unless an international agreement involving Republic of Bulgaria and the sentencing country outside the European Union provides otherwise.
To justify its decision , the judges indicated that homogeneous or similar criminal activity in the different countries is referred to various penalties. This stems from unequal legislative views on the degree of social danger of the particular offense in light of the political – socio- economic relations in each country and on the figure. Supreme Court Judges agree that when a fine is imposed by a foreign court , it shall be served in Bulgaria to a marginal maximum fine provided for in the relevant text of the Penal Code.
This conclusion is reached it is applied by analogy the provisions of art. 457, para. 4 of the Code, shall mitigate the punishment of imprisonment up to a maximum term of punishment that the law of the Republic of Bulgaria if certain verdict this is – high.
The decision is also given an answer the question whether the fine should be converted into Bulgarian Lev and at what point should do it.
According to the judges is necessary to fine recalculated to achieve adaptation of the foreign judgment to the rules of domestic law and in accordance with what the Bulgarian currency.
The decision explains that the course should be the official of the Bulgarian National Bank and authoritative restatement of the moment to be the day of entry into force of the sentence passed by the competent court of a country outside the EU. The reason for this is that since the judicial act of the sentencing State becomes enforceable and the opportunity arises for the execution of public duty, such as fine.
The competent Bulgarian court decides matters relating to the implementation of the verdict and render a ruling. Supreme Court justices indicated that this should also resolve all the issues related to the enforcement of a foreign judgment or punishment – original mode type prison facility to serve the sentence of imprisonment deduct served in the sentencing State punishment and served their pre-trial detention. According to SCC in case the transferred sentenced Bulgarian citizen is rendered in the sentencing state, this work must be respected by the court to reduce the sentence. Respect is due only when designated by the issuing state correctional residue is calculated after deduction of positions in the foreign country work.
As you may know the EU law prevail over national law of Member States. This is a very important factor and helps greatly to the unification of jurisprudence in all Member States. Over the years, it proved to be particularly important for case law on tax matters and issues related to the protection of competition.
The fact that the undertaking concerned by the a cartel agreement, which aims to restrict competition at the time of the conclusion of the cartel operates in the market in a way that is claimed to be unlawful is irrelevant for determining whether that a cartel agreement infringed Article 101 TFEU. In this context I suggest you to look at the findings of the European Court of Justice in Case C-68/12.
David Simonds watchdogs
In Case C-68/12 (Protimonopolný úrad Slovenskej republiky / Slovenská sporite??a as) CJEU concludes that in respect to finding that a restrictive agreement is not necessary to prove the existence of personal actions of the legal representative of a company or individual approved by the agent in the form of authorization of the actions of its employee who was involved in anti-competitive appointment.
Settled according to case-law, where it is established that an undertaking has participated in meetings with competitors who are anti-competitive in the weight of this company is to point data based on which it can be assumed that its participation in those meetings was without any anti and prove that it is indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.
To render it impossible participation of an undertaking in such a meeting be considered tacit approval of an unlawful initiative, nor to join its outcome, it is necessary that undertaking to distinguish open from this initiative so that other participants understand that it discontinue participation or she would tell her administrative authorities.
According to the Court, Article 101, paragraph 3 TFEU may apply to prohibited by Article 101 paragraph 1 TFEU agreement only when the entity that relies on this provision, it is proved that the four cumulative conditions laid down in this Article.
The principle of access to justice enshrined in the provisions of Art. 6, para. 1 of the ECHR required in civil proceedings in each litigant to provide a real opportunity to take part in the proceedings to protect their interests . When the litigant was deprived of his right to be represented , the final decision be set aside.
That is why the Supreme Court Decision ? 100 of 09.04.2013 , repealed the ruling of the lower court judgment because it considered that the defendant was deprived of his right to be represented in the process. Its legal representative possesses general power of attorney under Art. 34 of the Civil Procedure Code and this gives him the right to represent him in the open by the creditor bankruptcy .
Supreme Court of Cassation of Bulgaria
Supreme Court justices agree that empowering proxy rights under Art. 34 , para . 1 of the CPC , the principal has given general power of attorney to his attorney , allowing him to represent him before all courts and in all instances, including bankruptcy proceedings . Neither the CPC nor the CA requires the express authorization in the event of an appeal against the debtor’s application for opening of insolvency proceedings .
Therefore, the previous court had no reason to refuse the participation of the lawyer as a legal representative of the defendant on the grounds that the mandate is worded too broadly . Requirement for power of attorney exists only in the provision of Art. 626 , para . 4 of the CA when the initiator of bankruptcy is the debtor , while in the case the case is initiated by the creditor.
Reducing operational business costs is a matter that interests every business owner. With increasing competition within the EU this occurs as a fundamental opportunity to beat your competitors making your business much more successful.
More and more companies from different business niches are discovering the benefits of doing business in Bulgaria and establish businesses, and even relocate existing one to Bulgaria. This also applies to companies operating as a road transportation service provider.
As of 4 December 2011 admission to the occupation of road haulage operator and road passenger transport operator in the European Union is governed by Regulation (EC) No 1071/2009
Is that true and what really makes it beneficial? Is it legal?
- In general Bulgaria offers the lowest corporate tax within all EU state members as of 10% on net profit and lowest operational cost;
- Cheaper EU road transport operator’s license of around €1000;
- Much cheaper vehicle insurance starting off – €500;
- Cheaper MOT, TUV, ITV, Autokeuring and so on inspection as of €140;
- Lower expenses for salaries for traditionally high qualified employees;
- Lower annual truck tax;
- Lower levels of financial bank guarantees required namely €9000 for the first and €5000 for every next truck;
- Lower expenses for accountancy and legal support;
- You may continue to use your existing drivers and transport managers;
- Lower social insurance contributions;
- It’s absolutely legal
In addition we should refer besides the strategic geographic location of Bulgaria and a crossroads between Europe and Asia.
Strategic geographic location of Bulgaria
It’s easy to start up a new fully operational limited liability company in a few weeks only. Few weeks are needed as well to grant EU transport operators license.
Limited Liability Company can be constituted by one or more natural persons or entities. Liability is limited to the amount of subscribed foundation capital and minimum foundation capital by law is only 1 euro.
There are 4 criteria that the operator must fill to access the profession according to Regulation (EC) No 1071/2009:
- Good repute criterion, which shall ensure the adequate entrepreneurial ethical conduct. Manipulating a Tachograph, for example, would be considered a serious infringement leading to the loss of the good repute.
- Financial standing, which requires operators to have available capital assets every annual accounting year of at least € 9.000 for the first vehicle and € 5.000 for each additional vehicle.
- Professional competence, which assesses the practical knowledge and aptitude of professionals in the sector by means of an obligatory exam with common arrangements, marking and certificates.
- To have an effective and stable establishment in a Member State.
In addition all steps could be treated without your personal presence so you can stay focused on your current activity.
If everything mentioned here makes sense to you and can help to improve the competitiveness worthwhile to conduct more in-depth financial analysis.
If you have any further questions you know how to find us.