Status of Digitalisation of ESCP Enforcement Procedures
Under Bulgarian law, it is not possible to initiate court proceedings digitally. Applications are submitted in writing to a court registry and should be written in Bulgarian. Applications may be sent through the post but not by fax or email.9
The only provision made by the CPC for online procedural action is the attachment of a debtor’s claims on a bank account in enforcement proceedings (Article 450a of the CPC). This action is carried out by a bailiff.10
However, Bulgaria recently amended its Judiciary Act (Закон за съдебната власт), providing for an Information System for Judicial Enforcement (Article 360y of the Judiciary Act).
This information system is a single electronic database through which bailiffs across Bulgaria upload in a unified order and format data from their registers and diaries on the actions taken in enforcement cases. This data is uploaded daily. This makes judicial enforcement more transparent, fast and efficient. Registered users (in Bulgaria and abroad) are able to access the system. Access to the information system by State bodies, local self-government and local administration bodies and persons entrusted with the exercise of a public function shall be free of charge (Paragraph 4 of Article 360y of the Judiciary Act).
ESCP Procedural Aspects
1. Competent Enforcement Authority
The authorities competent for enforcement in Bulgaria are court bailiffs (public and private5). In Bulgaria, there is a dual system of judicial enforcement. While state enforcement agents act within the structure of the district courts, private enforcement agents are independent legal professionals, licensed by the Minister of Justice and organised within the Bulgarian Chamber of Private enforcement agents.
2. Rules on Service
Paragraph 1 of Article 38 of the CPC submits that a communication is served at the address indicated in the case. Paragraph 2 and 3 further state that service may be effected at an e-mail address chosen by the party for service. Pursuant to paragraph 1 of Article 38 of the CPC, the consent to service under paragraphs 2 and 3 may be withdrawn at any time, without prejudice to the regularity of the actions already carried out. Paragraph 5 further states that where service cannot be effected under paragraphs 1 to 3, the communication is served at the current address of the party or, failing that, at their permanent address.
Article 38a of the CPC provides that a person who has carried out a procedural act in electronic form must provide an e-mail address for notification of receipt of the electronic statement and for the result of the technical verification of the act. A person who carries out a procedural act in electronic form may agree to accept electronic statements and electronic documents from the court hearing the case in proceedings before the relevant level of jurisdiction or before all levels.
3. Language of the Certificate and Documents to be Appended
In court proceedings, applications must be made in Bulgarian and submitted to the court in writing (Article 4 of the CPC). The CPC stipulates that all documents the parties submit in foreign languages must be accompanied by translations in Bulgarian, which have been certified by the parties. If the court is unable to verify the accuracy of the translation itself or if the accuracy of the translation is challenged, it shall appoint an expert to verify it (Article 185 of the CPC).
4. Enforcement Fees
Due to the dual system of Bulgarian enforcement (with private and public bailiffs), there are two sources of regulation for the bailiffs’ fees, both based on the same provisions of the CPC. However, the amount of the fees are practically the same.
Pursuant to the Schedule, there are two basic types of fees: fixed fees, which are collected for a certain procedural action (opening a case, etc.) and “proportional” fees, which are based on performance (i.e. based on the estimated amount collected in the enforcement procedure). There are also “additional” fees that have to be paid for enforcement operations performed during holidays and outside regular business hours.
For example, the fee for an enforcement order is 2 percent of the material interest, but not less than €12.5 (section I of the Schedule).
The costs of issuing a writ of execution are borne by the person in whose favour the writ of execution is issued.
The fee for an application for the recognition and enforcement of a judgment issued by a foreign court, arbitration court or other body is BGN 50 (Article 15 of the Schedule).
5. Refusal, Stay, or Limitation of ESCP Enforcement Procedures
Article 624b of the CPC specifically regulates the stay or limitation of enforcement procedures within the meaning of Article 23 of the ESCP Regulation. Pursuant to paragraph 1 of Article 624b of the CPC the stay or limitation of the enforcement of a decision of a Bulgarian court rendered pursuant to the ESCP Regulation shall be ordered by the court before which the case is pending and, where the judgment has become final, by the court of first instance. Paragraph 2 further submits that an application for a stay of enforcement of a foreign judgment shall be made to the district court which issued the order permitting execution and the writ of execution.
The general national procedural rules for the stay of enforcement procedures are laid down in Article 420 of the CPC. Generally, an objection to an enforcement order does not stay enforcement except when the debtor provides a proper security for the creditor (paragraph 1 of Article 420 of the CPC).
Pursuant to paragraph 2 of Article 420 of the CPC, the court which ordered immediate enforcement (see Articles 418 and 419 of the CPC), may stay it without the need for the security referred to in par. 1 where a request for stay is made, supported by documentary evidence that:
1. the claim is not due;
2. the claim is based on an unfair term in a contract concluded with a consumer;
3. the amount of the claim under a contract with a consumer has been incorrectly calculated.
The order to stay the enforcement procedure can be appealed, however it is immediately enforceable, irrespective of any appeal (paragraphs 3 and 4 of Article 420 of the CPC). Where the appeal relates only to a part of the claim, the court shall stay enforcement only for the relevant part of the claim (paragraph 2 of Article 421 of the CPC).
Critical Assessment
The first problem with the enforcement of ESCP judgements in Bulgaria is the language barrier. The legislation that deals with enforcement (namely, the CPC) is only available in Bulgarian which complicates the enforcement procedure for foreigners. While some information on enforcement can be found on the EU’s E-Justice portal, there is not enough information on enforcement procedures to guide a foreign party through the enforcement process. Furthermore, the entire enforcement procedure is conducted in Bulgarian. Thus, the applicant cannot submit the Form D in any other language. Thus, a party wishing to enforce an ESCP judgement in Bulgaria might have to engage a lawyer. Consequently, the costs of enforcement will increase for the party, making it less likely that they will decide to pursue enforcement at all.
The second problem with the enforcement of ESCP judgements in Bulgaria is the lack of digitalisation. While there is an information system set up according to Article 360y of the Judiciary act, only registered uses are able to access the system. Furthermore, private individuals have to pay to access the system which hinders access to justice.
Thus, enforcement of ESCP judgements is difficult, especially for foreigners who do not speak Bulgarian and do not reside in Bulgaria. It would be beneficial to set up a way of enforcing ESCP judgements digitally with the option of the procedure being conducted in other languages (at least in English). This would significantly simplify the enforcement procedure of ESCP judgements and lower its costs. However, even just producing a comprehensive guide on ESCP judgement enforcement that would include an official translation of the relevant parts of legislation would go a long way of simplifying the procedure for foreigners.