Our key expert in the field of dispute resolution and arbitration and a PhD in Private International Law – Tsvetelina Dimitrova, is the author of the section “International Arbitration –…
The team of Georgiev, Todorov & Co. Law Offices constantly monitors the changes in the Measures and Actions during the State of Emergency Act.
Our attorneys Tsvetelina Dimitrova and Ida Golemanova, our legal advisers Alexander Leshev and Vili Datsov and our intern Viktor Gerdjikov prepared information regarding the amendments to the legal terms, legal proceedings, labour law, incomes which cannot be subject to enforcement, sanctions for violations of the anti-epidemic measures, renting of state and municipal properties, and tourist services, which enter into force on 09.04.2020.
With the Amending and Supplementing Act to the Measures and Actions during the State of Emergency Act, prom. SG issue 34 of 09.04.2020 (the “Act”), a number of amendments were adopted with regard to material and procedural terms, the possibility of concluding employment contracts for short-term seasonal agricultural work, sanctions imposed for non-compliance with the introduced anti-epidemic measures, etc. To help our readers, our law firm has sought to summarize the more important changes introduced by the Act.
1. LEGAL TERMS
Which legal terms resume running?
The amendments to the Act provide that part of the limitation periods provided for in statutory acts, with the expiry of which certain rights expire or will be terminated or obligations for persons will be created, will run during the state of emergency. It is envisaged that those terms will start running again after the expiry of 7 days from the promulgation of the amendments in the State Gazette (09.04.2020). For example, if a term started to run on 10.03.2020, it stopped on 13.03.2020, then it continues to run from 17.04.2020.
The terms for the implementation of the instructions given by an administrative body continue to run from 17.04.2020. At the same time, it is important to note that the provision of Art. 4, item. 1, which extends by one month from the cancellation of the state of emergency “the time limits established in the law (…) which expire during the state of emergency and are related to the exercise of rights or fulfillment of obligations of private entities.”
Which terms will not be extended after the cancellation of the state of emergency?
Until the adoption of the amendments and supplementations to the Act, the terms set out in law (other than those suspended), which expire during the state of emergency and related to the exercise of rights or fulfillment of obligations of persons, were extended by one month after the repeal of the state of emergency.
With the new para. 2 of Art. 4 of the Act the legislator explicitly established that part of these terms will not be extended. This applies to the terms related to the following procedures:
● awarding of public procurements and concession procedures;
● procedures under the European Structural and Investment Funds Management Act;
● procedures under Chapter Three of the State Property Act and Chapter Three of the Municipal Property Act (mandatory expropriation of real estates);
● procedures under the Agricultural Producers Support Act;
● procedures under the Agricultural Land Ownership and Use Act;
● procedures under the Forestry Act;
● procedures under the Act on implementing of the Common organization of agricultural markets of the European Union;
● procedures under the Veterinary Practice Act;
● procedures under the Spatial Development Act;
● procedures under the Protection of Competition Act.
The foregoing also applies to procedures under the relevant subordinate legislation.
What are the changes with regard to the effects of delay?
Until the amendments, the consequences of a delayed payment of all obligations of private entities (interest, penalties, the use of acceleration clause, rescission of a contract, seizure of property) were not applied.
After the amendments to Art. 6 of the Act, exempted from the consequences of the delay until the end of the state of emergency are only private entities, debtors under credit agreements, lease agreements and other forms of financing (factoring, forfeiting) provided by banks and financial institutions. In these cases, no late interest or penalties are due, no acceleration clause shall be enforced, the contract cannot be terminated due to non-performance and no property shall be seized.
2. LEGAL PROCEEDINGS
Can public hearings be held during the state of emergency?
Court hearings, including those of the Commission for Protection of Competition, may be held remotely, ensuring the direct participation of the parties in the proceedings. Minutes shall be drawn up for the public hearings held and shall be published forthwith, and the record from the hearings shall be kept until the term for amendment of the minutes. It is expressly stated that the court and the Commission shall notify the parties when the hearing will be held at a distance.
Which procedural time limits expire during a state of emergency?
According to Art. 3, item 1 of the Act, are suspended all time limits, whether in court, arbitration or enforcement proceedings, except for the proceedings listed in Annex № 1 (see below). The time limits, which were considered suspended until the current amendments, shall start running again after 7 days of the promulgation of the amendments in the State Gazette, i.e. from 09.04.2020.
During the state of emergency the time limits for the following proceedings shall expire:
● Criminal proceedings
1. Proceedings relating to the imposition of supervision measures, incl. detention measures and compulsory medical measures;
2. Questioning witnesses or defendants and other actions for taking of evidence in criminal proceedings;
3. Extradition and European arrest warrant procedures;
4. Proceedings concerning speculation; the provision of false or misleading information about aid, anxiety or accident through the media; violation of rules for non-spread of disease; petty hooliganism.
5. Appeals against criminal decrees issued in connection with the state of emergency;
6. Early release cases, etc.
● Civil and commercial proceedings
1. Custody procedures only in respect of interim measures;
2. Procedures under the Domestic Violence Protection Act only concerning an Order for Immediate Protection or amendment thereof, as well as in cases of rejection of the request for protection;
3. Permits for withdrawal of child deposits;
4. Security proceedings, incl. securing evidence;
5. Disclosure of bank secrecy, etc.
● Administrative proceedings
1. Proceedings concerning the preliminary execution of administrative acts;
2. Proceedings concerning disclosure of tax and insurance information;
3. Proceedings concerning the suspension of the execution of an assessment act;
4. Proceedings concerning the legality of detention by the Interior Ministry bodies;
5. Security proceedings, incl. security of evidence;
6. Proceedings for protection against unlawful actions and omissions of the administration;
7. Proceedings under the Public Procurement Act;
8. Proceedings under the Concessions Act;
9. Proceedings under the European Structural and Investment Funds Management Act;
10. Proceedings under Chapter Three of the State Property Act and Chapter Three of the Municipal Property Act;
11. Proceedings under the Electoral Code;
12. Appeal proceedings concerning acts for establishing public takings;
13. Proceedings under the Spatial Development Act related to appealing acts for construction permits issued and for approved and / or amended detailed development plans;
14. Appeal proceedings of administrative acts issued in connection with the state of emergency;
15. Appeal proceedings against court orders, etc.
Judgments, decisions, and orders shall be issued on all other pending cases, but they will not be served to the parties, and, if possible, they will be published on the courts’ websites.
3. LABOUR LAW
Opportunities for concluding employment contracts for short-term seasonal agricultural work:
§ 49b of the Transitional and Concluding Provisions of the Act provides for the possibility of concluding employment contracts for short-term seasonal agricultural work for a period of more than one day during the state of emergency. Such contracts may also be concluded by registered tobacco growers for the cultivation of crops and the harvesting of tobacco.
Employment contracts should be executed by a sample, approved by an order of the Minister of Labour and Social Policy and published on the website of the General Labour Inspectorate Executive Agency. The employer can obtain the registered contracts both electronically and in-person at the Labour Inspectorate. The employer is not obliged to notify the Labour Inspectorate under Art. 62, para. 3 of the Labour Code. Upon the termination of an employment contract, it is not necessary to issue a dismissal order or other document to certify the termination. The working hours of the contract might be 4, 6 or 8 hours. The remuneration should be paid on the day of expiry of the employment contract against a receipt. In the cases where the term of the employment contract is more than one month, the remuneration should be paid every month, but not later than the fifth day of the month following the month in which the work was done. Social security and health insurance contributions shall be paid by the employer.
What are the changes regarding the procedure for recognizing employee and employer representative organizations?
Pursuant to the newly created §49c of the Transitional and Final Provisions of the Act, the term of Art. 36, para. 4 of the Labour Code, related to the procedure for recognizing employee organizations and employer’s organizations at a national level, is suspended. Such a procedure is carried out at the initiative of the Council of Ministers every four years, beginning with an announcement by the chairman of the National Council for Tripartite Cooperation in the State Gazette. Within four months of the publication of the notice, the organizations of employees and employers who wish to be recognized as representative must submit their requests. The commencement of such a procedure was initiated by a notice promulgated in SG No. 10 of 04 .02.2020. It is the four-month deadline for submitting requests, which would otherwise expire on 04.06.2020, ceases to run from 09.04.2020 until the state of emergency is canceled. Employee and employer organizations recognized as representative at a national level by a decision of the Council of Ministers shall retain their representativeness until the completion of the procedure under Art. 36 Labour Code.
4. INCOMES WHICH CANNOT BE SUBJECT TO ENFORCEMENT
According to §15 of the Concluding Provisions of the Amending and Supplementing Act to the Measures and Actions during the State of Emergency Act, the amount of income that cannot be subject to enforcement is increased. It should be noted that until the amendments, remunerations, compensations under the Labour Code, pensions or scholarships of up to BGN 250 per month were not subject to enforcement. As of 09.04.2020, the amount of the income which may not be subject to enforcement is equal to the minimum wage – BGN 610 per month.
5. SANCTIONS FOR VIOLATING THE ANTI-EPIDEMIC MEASURES
§17 of the Concluding Provisions of the Amending and Supplementing Act to the Actions during the State of Emergency Act establishes amendments of the Health Act, which affect the amount of the fines and property sanctions, imposed for the violation or non-execution of anti-epidemic measures, when the act does not constitute a crime.
The amount of the fine for violation or non-execution of a measure by an individual is in the amount of 300 to 1000 BGN and in case of a repeated violation from 1000 to 2000 BGN. If subject to the sanction is a sole trader a legal entity the sanction is in the amount of 500 to 2000 BGN and in the case of a repeated violation – from 2000 to 5000 BGN.
6. RENTS OF STATE AND MUNICIPAL PROPERTIES
The new Art. 6b provides the possibility of reducing, at the initiative of the relevant governmental body or municipal council, the amount of the rent and use of state and municipal properties and of exempting individuals and legal entities from the obligation to pay the lease installments, in cases where the activity of these persons is limited or suspended by the measures imposed during the state of emergency.
7. TOURIST SERVICES
By Order T-RD-16-76 /17.03.2020 of the Minister of Tourism, for the period up to 13.04.2020 have been discontinued: tourist visits within inland tourism, organized incoming and outgoing tourist trips and related tourist services, organized visits that constitute additional tourist services. The tourist visits described in the order, that have already commenced before its entry into force, shall be terminated in the fastest way possible.
Art. 25 of the Act regulates the case in which a tourist trip is canceled due to the state of emergency. If а trip has already been paid for, this may create an obligation for the tour-operator to refund the paid amount to the traveler. In case the parties fail to reach an agreement for a different substitute tourist package, the new Art. 25 of the Act states that within a one month period from the date of the cancellation of the state of emergency, the tour operator must reimburse all payments, received from or on behalf of the traveler.
8. THE EFFECTIVE DATE OF THE ACT
The amendments shall enter into force on the day of their promulgation – 09.04.2020, except for the newly created paragraph 2 of Art. 4, which will enter into force on 17.04.2020.