Blog Sofia

Or what are the legal provisions in conclusion and dissolution of marriage between two people from different countries

One ticket to Paris, please, he said, and so it all began in the story of a meeting with a woman of French nationality and an apartment, overlooking the Eiffel Tower. The question, which followed, was “Will you marry me?” But what says the law about the continuation of the story.

Conditions and form of marriage with a foreigner

According to the Code of Private International Law, the conditions of marriage with a foreigner will be different for each of the intending spouses. They will be determined by the law of the country, whose citizen the person at the time of the marriage was. If we assume that the hero of our story is a Bulgarian citizen, authoritative for him will be the conditions, set out in the home Family Code, for example that he must be at least 18 years old.

If the civil marriage is concluded on the banks of the River Seine before a local authority, the form of the marriage will be regulated by the French law, since it is determined by the law of the country before whose authority it is concluded.

That is why marriage, concluded abroad is recognized in the Republic of Bulgaria, if it follows the form, established in accordance with the above mentioned rule.

Property relations between the spouses

The property relations always interfere in the family idyll. They are regulated by the law of the country, where their common habitual residence is, and when such does not exist – the law of the country with which both spouses are most closely connected. So, if the young family finds that the apartment overlooking the Eiffel Tower is the appropriate place for them to live, their property relations will be regulated by the French law. If this law however allows, the spouses can define other legislation on the property relations between them by written agreement. In this way, the spouses can choose law, which permits the conclusion of a marriage contract, if such is not provided under the law of their habitual residence.

Divorce and legal separation

We cannot assume certainly that the family happiness of the heroes of our story will last forever. In this case, assistance will come with Regulation (EU) 1259/2010 of the Council as of 20 December 2010, which introduces uniform rules for the applicable law to divorce and legal separation.

According to it, the spouses can determine the applicable law to divorce and legal separation by formal agreement, provided that it is one of the following:

the law of the country in which they are habitually resident at the time of the conclusion of the agreement
the law of the country of their last habitual residence, insofar as one spouse still resides there at the time of the conclusion of the agreement
the law of the country, whose citizen is one of them at the time of the conclusion of the agreement
the law of the seized court

The agreement can be concluded and modified at any time, but not later than the time when the court is seized.

In the event that the relationships between the spouses are deeply and irreparably upset and they appear to be unable to reach any agreement on the issue, the divorce or the legal separation will be regulated by:

the law of the country of their habitual residence at the time the court is seized or if this is not fulfilled,
the law of the country of their last habitual residence, provided that such residence has been completed not more than one year before the court was seized and if one of the spouses still lives in this country at the time the court has been seized, or if this is not fulfilled,
the law of the country of the court seized

This is where the question arises, which will be the competent court seizes. This time another regulation will regulate the relations between the spouses in order to help them overcome the consequences of the failed marriage.

According to Regulation (EU) 2201/2003 of the Council as of 27 November 2003 competent to hear cases, relating to divorce and legal separation, are:

the courts of the Member State, on which territory the spouses are habitually resident
or have had last habitual residence if one of them still lives there
or the defendant has their habitual residence
or in case of a joint statement of claim and either of the spouses is habitually resident
or the claimant is habitually resident if they have resided there for at least one year immediately preceding the lay of the claim
or the claimant is habitually resident, if they have lived there for at least six months immediately preceding the lay of the claim and if they are citizen of that Member State, or, in the case of the United Kingdom or Ireland, if they have citizenship (domicile) there
the courts of a Member State, whose citizens are both spouses, or, in the case of the United Kingdom or Ireland, where they have domicile

In the hurry to finalize the divorce, the person, whose marriage failed, should not miss the exclusive rule that against the spouse who is habitually resident in a Member State or is citizen of a Member State (the United Kingdom or Ireland – domicile) can lay a claim in another Member State only in accordance with the above mentioned rules.

Parental responsibility

The purpose of the divorce is to end the marriage relationship between the spouses, but if in one of the happy past years, the heroes of our story can have created a successor, the law has to intervene again in order to resolve the issue of the parental responsibility.

As a general legal concept it incorporates the issue of exercising the parental rights and determining the mode of personal relationships between parent and child.

The Jurisdiction on cases about parental responsibility is regulated again in Regulation (EU) 2201/2010. The general rule, with which the spouses must comply, is, that competent for all cases relating to parental responsibility are the courts of the child’s habitual residence at the time when the court’s seize. So, if the small successor has grown up along the banks of the Seine, competent to consider the issue of the parental right will be the French court.

The European legislature, obviously having realized the desire of all spouses in a similar situation to quickly resolve misunderstandings, arising from the marriage, has provided also the opportunity for joining the case on parental responsibility with a marriage claim, but in cumulative compliance with the relevant requirements:

at least one of the spouses has parental responsibility over the child
the jurisdiction of the court has been expressly or otherwise in an unequivocal manner accepted by the holders of parental responsibility
is in the best interest of the child

Alimony

One not so pleasant consequence of the divorce is the alimony. Regulation 4/2009 regulates both material and procedural law in issues, relating to alimony. The general rule for determining the applicable law is the habitual residence of the person to whom the alimony is owed. It is possible for the parties to choose another law, which will arrange their relations on alimony, but it is impossible to make a refusal of the right of alimony. It is of particular relevance the permission the case for alimony to be joined with the case on parental responsibility.

The article has been published in Bulgarian, in Capital Daily.

Or what can bring the ideas to change the Law on Protection of Competition

The recently proposed amendments to the Law on Protection of Competition (LPC) were met with disapproval by the representatives of the commercial sector, but they already passed the first reading in the parliament. The State tried to protect the local small businesses and to solve the imbalance in the market – a topic that stirs the spirits in whole Europe by introducing stricter national rules in antitrust law. However, practically, this is an unprecedented interference in trade relationships that exist between retailers and suppliers. Below, we will examine the main contentious points in the proposed law.

The introduction of a new concept “significant market power”

The legislator introduces the concept of an enterprise, which is not dominant, but in view of its market share, financial resources, opportunities for market access, technological level and economic relations with other enterprises, can hinder competition in the relevant market, because its suppliers or buyers are dependent on it. Unlike the cases of monopoly or dominant position, which are relatively well defined and largely objective, the new concept contains both vague language such as “dependant suppliers or buyers” and subjective evaluation criteria.

In the proposed texts, the confusion of unfair trading practices with monopolistic ones is clear. Often, the commercial conduct of large retails chains is contrary to the principles of integrity and honesty while doing transactions. For example, there are many cases of lack of written contracts, amendments to contracts retrospectively, unfair termination of commercial relations. All these practices, however, should be considered rather in the light of the provisions of unfair trade practice and not within the scope of antitrust provisions. Moreover – equating “dominant position” with “significant market power”, the legislator has determined fines in the current LPC in case of abuse in 10% of the total turnover for the previous financial year of the enterprise offender.

Contrary to the principle of “freedom to contract”

Another feature and innovation is the draft model contracts and/or general terms and conditions for supplying goods, intended for sale, of enterprises with a total annual turnover for the previous year of more than 50 million leva and proposals for their changes to be evaluated for compliance with the provisions of the LPC by the national competition authority.

The text of the draft law is inconsistent with the statutory principle of freedom to contracts, established in the Law on obligations and contracts, and it imposes administratively approved model contracts. The contracting parties are independent economic entities that have the freedom to enter into contracts, as they determine their own specific content, the kind of the contracts, the form to be concluded in. The law provides that the freedom to contract and the actual intention of the parties has to be clearly expressed and has to comply with the regulations in order to be lawful. The contractual imbalances, associated with unequal positions in negotiations should be solved by means of commercial law, other than the instruments of the competition law.

Failure to comply with the European recommendations for “self-regulation”

In connection with the serious imbalances in the supply chain of food, the European Parliament welcomed with its resolution the self regulation and invoked the European Commission (EC) and the Members of EU, to eliminate regulations that embarrass the trade within the common market. In this direction are also the recommendations of the Commission, which establishes the principles for self regulation Supply Chain Initiative, based on compliance with the 10 principles of good commercial practices. For example, creation of codes of ethics, business forums, unions and others between the different market participants (buyers, sellers, suppliers and manufacturers), where in a natural market way and according to the specifics of the segment to eliminate the problems through negotiations.

Violation of the principle of “freedom of establishment” in the EU

The principle of “freedom of establishment” is provided in the Treaty on the functioning of the European Union (TFEU) and confirmed by the court practice of the Court of Justice of the European Union. Under the TFEU entities, operating legally in a Member State, can exercise business steadily and continuously in another country, Member of the EU (freedom of establishment, formulated under art.40 of the TFEU). The right of establishment includes the right to create and manage enterprises for the purpose of constant activity with stable and permanent character under the same conditions as those, provided under the laws of the Member State for its own entities. In this way, the proposed draft law could lead to discrimination against participants in the chain and to redirecting of retailers to other countries.

Failure to comply with the principle “impact assessment” of regulations

In 2009 the European Commission published guidelines on “impact assessment” regulations, which aim to identify and predict the impacts of the implementation of changes in the regulatory environment, as well as to evaluate the results of these effects on the market and interested parties (producers, traders, consumers). Such “impact assessment” is necessary also according to our regulatory authority in order to determine whether a regulation will have a significant impact, and what the effect on conditions of competition will be. The Commission for Consumer Protection in its Decision No 495 as of 4.05.2010 declares: “taking measures of any kind should be done only after a thorough examination of market issues through an extensive public consultation and impact assessment of each possible approach“, which has not been done till now.

The ban for regulations in the field of competition reflects in the Act restricting administrative regulation and administrative control over economic activity. Under the provisions of the latter in administrative regulation and control of the economic activity the state bodies and local government bodies cannot impose requirements, restrictions and burdens that limit competition.

The so proposed law draft affects actually all sectors of the economy, contrary to a number of national and European principles, representing a significant administrative regulation in trade relations between private entities and can be a prerequisite for contraction of competition. Given the experience of European countries and the differences in legislation at European level, there is a desire for common European legal regulation that the national legislature would have wait.

The article has been published in Bulgarian, in Capital Daily.

And how to guarantee the recognition and satisfaction of our claim

According to a folk wisdom money is likely to return to its owner. Perhaps, guided by this idea, the legislator has introduced a number of ways to assist creditors in the recognition and satisfaction of their claims, but the trends in the practice show that the most used of these is the promissory note.

Requisites

The promissory note proves a presence of a monetary obligation that one person (payer) has recognized conclusively with signing the order, giving a written promise to make payment on behalf of another person (payee). Usually, the use of promissory note is reached when there is a debt between two parties and need for greater security of the creditor to receive real money on their claim.

In order to be valid, the promissory note shall contain the following information, set out in the Commerce Act:

The title “promissory note” in the language in which the document has been written, as the term “promissory note” should also be presented in the text of the document

An unconditional promise for payment of a certain sum of money. In case that a certain sum of money is not specified, this will result in the nullity of the promissory note.

Marking of the maturity, i.e. the moment, when the debtor should pay the promised sum of money. Promissory note in which no maturity date has been indicated shall be considered payable upon presentation.

Indication of the place of payment. If such is not indicated, the law considers that the place of issue of the promissory note shall be considered as place of payment, but it shall be indicated next to the name of the drawer.

Name of the person to whom or to whose order the sum must be paid.

Indication of the date and place of issue. A promissory note in which no place of issue has been indicated, shall be considered as issued at the place (address) indicated next to the name of the drawer.

Signature of the drawer (payer).

Issuance

The issuance of a promissory note shall be implemented through a unilateral transaction in which the document is transmitted by the issuer (debtor) to the payee (the creditor). This transaction requires proper design of the document in accordance with the above mentioned requisites, but also its actual transmission to the creditor.

Transference

The promissory note can be transferred from one owner to another by giro. It should be written on the back of the promissory note, and if the back is small, on a separate sheet called allonge that is fixedly attached to the document. The only prop of the giro is the signature of the endorser (transferor).

Presentation for payment

As it was mentioned, a promissory note in which no maturity date has been indicated shall be considered payable upon its presentation to the debtor. In principle, the duration of the presentation for payment is one year from the issuance of the document, as the issuer can specify a shorter or longer period.

Presentation for payment is best to be done by a notary invitation, as after the deadline for the performance, provided in it, interests for late debtor commence.

If the debtor does not accept the promissory note and refuses to pay, for the creditor arises the opportunity to be issued an official testifying document – protest providing the refusal of the debtor and respectively the regular presentation. Competent to issue the protest is a notary of the place of payment of the promissory note, as the service is due to a determined notary fee.

The protest procedure is expensive and difficult for the creditors. Therefore, the legislator provides that under a special arrangement in the promissory note – without protest or without costs, the creditor shall be released from the need to make the protest, but not from the need to make a presentation for payment.

Proceedings before the court

If at maturity or after the expiry of the time to pay, provided in the notary invitation, the debtor does not pay the amount due, for the creditor arises the possibility of referring the matter to the court. This right can be exercised by initiating warrant procedure or claim procedure.

The warrant procedure is characterized by its speed and procedural economy. It starts with filing an application form for issuance of an order for execution (not statement of claim) to the local regional court, respectively the seat of the debtor, accompanied by payment of a state fee of 2% of the requested amount.

After its submitting, the court shall examine whether the document is regular from the outside and certifies the enforceable claim against the debtor. In case the court recognizes the request of the applicant, together with the order for execution, the court issues the writ of execution and in this way provides the creditor with the opportunity to immediately initiate enforcement proceedings against the debtor.

The order for immediate execution can be contested by the debtor within two weeks of its presentation. It is important to be mentioned that the objection to the order for execution suspends the enforcement. From the moment, when the creditor is notified for the filed objection by the debtor, one-month term begins to run, within which the creditor can seek their rights over their monetary claim by the claim procedure, as initiates court proceedings. The submission of a statement of claim provides payment of a court fee of an additional 2% of the requested amount.

If the court accepts the request of the creditor, what follows is an enforcement against the debtor under the promissory note, as the debtor responds with all their property (bank accounts, real estates, cash receivables, etc.), for the promised in the promissory note amount and the interest accrued on that amount, including the obligation to pay the costs of the creditor, incurred in connection with the court case.

The article has been published in Bulgarian, in Capital Daily.

Or what are the ways of acquiring a Bulgarian citizenship

According to the Universal Declaration of Human Rights: “Everyone has the right to a nationality. Nobody can be arbitrarily deprived of his nationality nor denied the right to change his nationality”. To comply with this principle, countries should establish such procedures for the acquisition of citizenship that exclude or limit the ability for someone to be stateless.

Basic Provisions

In essence, the citizenship is a permanent legal and political relationship of one person to the state, under which that person falls under the state-authoritative rule of this country and benefits in full from the rights and freedoms provided by its laws.

Bulgarian citizenship as a legal institution is governed by the Constitution of the Republic of Bulgaria, the Law for the Bulgarian citizenship (LBC) and many international treaties, which Bulgaria is a party to. Individuals, who are Bulgarian citizens, are protected by the Bulgarian state and have all the constitutional rights and obligations, wherever they are.

Foreigner is every individual, who is not a Bulgarian citizen. In principle, the legal status of the Bulgarian citizens and the foreigners is the same. However, Bulgarian citizenship is required in order to exercise certain rights and obligations.

The Bulgarian legislation provides several ways for acquiring Bulgarian citizenship. According to Art.25 of the Constitution, “Bulgarian citizen is everyone, who has at least one parent, possessing Bulgarian citizenship or who was born in the Republic of Bulgaria, if not acquiring other citizenship by descent. Bulgarian citizenship can be also acquired by naturalization. “

Acquiring Bulgarian citizenship by origin

Bulgarian citizen by origin is everyone who has at least one parent who is a Bulgarian citizen. A Bulgarian citizen by origin is also each individual who is fathered by a Bulgarian citizen or whose origin by a Bulgarian citizen is established by a judgment. This is the basic principle for acquiring Bulgarian citizenship, as it is acquired from the moment of the child’s birth, as there is no need for the parents to carry out any legal action.

Acquiring Bulgarian citizenship by birthplace

Bulgarian citizen by birthplace is everyone, who was born on Bulgarian territory if not acquiring other citizenship by descent. An example for that are the cases, when the law of the state, whose citizens are the parents, has adopted the principle of birthplace. According to the LBC, a child is considered as born in Bulgaria when found on Bulgarian territory, whose parents are unknown. The child should be physically unable to indicate who their parents are. In this case it does not matter whether the parents are foreign citizens or they are stateless, because these facts cannot be established.

Acquiring Bulgarian citizenship by naturalization

Citizenship by naturalization can be acquired only by foreigners and stateless individuals. The LBC provides various hypotheses for the acquisition of citizenship by naturalization, stating the necessary conditions, which have to be met by the applicant for each of them. The LBC provides the general order under which a foreigner can acquire Bulgarian citizenship – an individual, who is not a Bulgarian citizen, can acquire Bulgarian citizenship if meeting the following requirements to the date of filing the application for naturalization:

is of the full legal age
at least 5 years before has been given a permanent or long-term stay permission in Bulgaria
has not been judged for a crime of general nature by a Bulgarian court and there are no formed criminal proceedings against that individual for such a crime, unless rehabilitated
has an income or occupation that enables the individual to withstand in Bulgaria
speaks Bulgarian – established with the taking of an examination, establishing the degree of fluency in Bulgarian, organized and conducted by the Center for monitoring and evaluating the quality of the school education
has been released from citizenship or will be released from it at the time of acquisition of Bulgarian citizenship. This requirement does not apply to:

people – spouses of Bulgarian citizens
citizens of a country, Member of the European Union, party to the Agreement on the European Economic Area or the Swiss Confederation
citizens of countries, which have signed contracts with Bulgaria, establishing reciprocity

Strict than common modes are provided to individuals who (1) have been legally married to a Bulgarian citizen for not less than three years; (2) were born in Bulgaria; (3) have a permission for permanent or long-term stay prior to the full legal age; (4) have been granted a refugee status or asylum for not less than three years before the date of filing the application for naturalization; (5) have been granted a humanitarian status for not less than five years before the date of filing the application for naturalization; (6) are stateless individuals, as well as (7) individuals whose naturalization is of interest for the country or who have special merits to it in public and economic field, science, technology, culture and sport.

To stimulate foreign investors

It has to be noted that together with the simplified procedures for acquiring a Bulgarian citizenship, in 2013, the legislator decided to make a special mode, under which foreigners, who are of the full legal age and have not been judged for a crime of a general nature by a Bulgarian court, can acquire a Bulgarian citizenship by naturalization. The aim is to stimulate the foreign investors to operate in Bulgaria. According to the innovated mode, an individual who is not a Bulgarian citizen and meets these requirements can acquire a Bulgarian citizenship by naturalization, if:

at least one year before, the individual has been granted a permission for permanent residence in Bulgaria, on the ground of made investments in the country, according to the dimensions and conditions, established in the Law for the Foreigners in the Republic of Bulgaria, and has increased the investment on the same terms of the law to a value of at least 2 million leva or has invested not less than 1 million leva in the capital of a Bulgarian company, which performs priority investment project certified under the Law on Investment Promotion (LIP); or\
at least one year before, the individual has received a permission for permanent residence in Bulgaria, on the ground of operating in the implementation and /or maintenance of an investment, having received a certificate under the LIP, in which year the made and commissioned investments have been maintained above the minimum threshold for issuing a certificate for investment class A, certified by the Ministry of economy, energy and tourism.

The article has been published in Bulgarian, in Capital Daily.

And what are the most common violations, which the insured individuals allow

Insurance occurs as a necessity in antiquity, but it invariably accompanies the socio-economic life until today. The modern world perceives it as an activity, related to indemnification of damages that occur after realization of the relevant risks.

Following one of the fundamental principles of voluntary insurance, the legislation, concerning this institute, introduces the insurance contract as a sole legal operative event of the relations between the insurer and the insured.

Legislative framework

In Bulgaria, the general regime, regulating these relationships, can be found in the Insurance Code, but there are special provisions, relating to the contract of marine insurance, and they apply in chapter ten of the Merchant Shipping Code as of 2002.

Subject of the marine insurance can be any property interest, related to the shipping, appreciable in money, such as a ship in operation, repair or construction, cargo, freightage, price for rent of a ship, remuneration of passengers’ transport, profit, expected from the arrival of the cargo at the destination, the costs of general accident, the obligations and the securities, associated with the ship, cargo or freightage, the obligations for wages of the captain and the crew members, etc.

Under the contract of marine insurance the insurer undertakes to cover the agreed maritime risks to which the insured interest is exposed and to pay within the insured sum a compensation for the damages, if this interest is affected by the occurrence of such risks. This obligation of the insurer involves certain rights and should also be accompanied by the obligatory actions of the insured, the failure of which is the most frequent subject of insurance disputes.

Pre-contractual obligation for informing

The legislator introduces obligations on the person who will acquire the status of insured before concluding the contract of marine insurance. This person shall notify the insurer of all circumstances known to him/her or which, with the due diligence, could be known to him/her and are essential for assessing the risk by the insurer, the terms of the contract and the decision to accept the proposal. Materially significant are those circumstances, under which the degree of probability of occurrence of the risk is so great that it can affect the discretion of the insurer on conclusion of the insurance and the conditions under which to conclude it.

Failure to notify can occur in two forms – through action, expressed in wrong declaring of the existence of certain circumstances or by omission – reticence of certain circumstances, which were explicit interest for the insurer.

Both forms of failure lead to the same consequences for the insured. For the insurer arises the right to withdraw from the contract, keeping the entire insurance premium, and if they do not exercise this right within seven days from the day they became aware of the unreported or incorrectly reported circumstances, they may refuse to pay the indemnity upon the occurrence of the covered risk if this risk is associated with some of these circumstances.

Contractual obligations

From the moment of signing the contract of marine insurance, for the insured arises the obligation within a reasonable time after becoming aware, to notify the insurer of any circumstance, which leads to a significant increase in the risk of significant delay of the load’s sending, deviation from the specified or usual route, changes in the way of transportation, the place of transfer, the appointment of the cargo and unloading, leaving the ship during the winter, not regulated in the contract, etc. Increasing of the risk occurs when the degree of probability of occurrence of an insured event is increased to a degree that the insurer would not cover the risk or would cover it, but under other conditions.

An increase of the risk could occur as a result of objective prerequisites beyond the control of the insured, as well as because of his/her fault. If it does occur due to circumstances, for which the insured is not responsible, for the insurer arises the legal right to demand payment of an additional premium, proportionately with the increased risk. In the event that the insured by his/her fault behavior causes an increasing of the risk, the insurer could terminate the contract and keep the premium if they do not prefer to seek payment of the relevant additional premium.

Another important obligation of the insured is in case of occurrence of a risk, covered by the insurance, immediately to notify the insurer of this. The notification shall contain all facts and circumstances regarding the occurrence of the insured event – when and where it occurred, what are the damages, their amount, etc.

The Merchant Shipping Code does not regulate explicit legal consequences of failure to perform this obligation, but in practice it is assumed that in this case the insurer has the right to refuse to make payment of insurance sums.

For the insured exists also an obligation, directly connected with the moment of occurrence of the insured event. The legislator accepts that this is the person, which is most close to the insured good, and considering this requires them to take all depending on it reasonable measures necessary to rescue the subject of insurance and to prevent or limit the damages, and to secure the claims for compensation against the persons, responsible for these damages. Furthermore – if the insured receives instructions from the insurer in response to the notification of the occurrence of the risk, he/she must take exactly the measures said in it.

In the event that the damages to the insured object have occurred because the insured person consciously or recklessly fails to take these measures due, the insurer shall not be liable for compensation.

When the damage to the insured object, is caused guiltily by a third party, after paying the compensation to the insurer, arises the subrogation right to intervene in the rights of the insured against this third party to pay for damages and losses. If the insured has renounced their rights to claim damages and losses against third parties, who have caused the damage, covered by the insurance, or has made guiltily impossible their implementation, the insurer could refuse to pay the insurance compensation in whole or in the relevant part.

Under the general rules of insurance, the insured is obliged to assist the insurer during the whole period of their relationships. This includes the proper storage of the evidences on the occurrence of an insured event, the provision of access for inspection of the insurer to the insured good in case of occurrence of a covered risk, and of course, providing any documents, requested by the insurer in connection with the insured event.

The insurance law regulates the social and economic relationships that are essential to the modern world. Its norms do not only protect the property and private interest, but provide adequate security in the entire civil and commercial turnover.

The article has been published in Bulgarian, in Capital Daily.

If the employee is posted for more than 30 calendar days, their explicit written consent shall be required.

The dynamic development of transboundary providing of services in the European Community led to the need for many Bulgarian enterprises to temporarily employ people abroad in order to work on the territory of another Member State. This finds a legal regulation in the institute of posting, which is regulated by a number of local and European acts.

Basic provisions

The Labour code introduces some general rules about posting. According to its provisions, if it is necessary because of the demands of the enterprise, the employer can post the employee to perform their employment duties outside their permanent workplace. If the employee is posted for more than 30 calendar days, their explicit written consent shall be required. The protection for a pregnant woman or a woman in a final stage of in-vitro process or a mother of a child, younger than 3 years old is enhanced. In these cases, regardless of the period of posting, the written consent of the employee is always required. Directive 96/71/EC of the European Parliament and the Council concerning the posting of employees within the service providing, regulates three cases of posting of employees in another Member State:

When the employer posts an employee on the territory of a Member State for their own account and under their guidance, under a contract between the employer and the person in the host country, for which the services are designated
When the employer posts an employee of an organization or enterprise owned by the group on the territory of a Member State
When the employer is a company that provides temporary employment and offers for hiring an employee to a company, acting or having its registered office in a Member State.

Is a work permit required

According to the Treaty concerning the accession of the Republic of Bulgaria to the EU, during the first seven years of the membership, the existing Member States have the right to restrict the free movement of Bulgarian citizens by imposing authorization for working on their territories. Nowadays, most of the Member States do not apply restrictions, but there are also such, which still take advantage of the legal opportunity they are given. Under the EU rules, posted employees by a Bulgarian employer in a Member State do not fall within the scope of this general mode and it is not required for them to be issued a work permit, as far as the employment relationship between the employee and the employer will be maintained throughout the whole period of posting. Exceptions to this rule are Germany and Austria, which impose temporary restrictions on posting of employees from Bulgaria by companies in certain branches.

Requirements

The posting of the employee is based on the written order of the employer, which must contain specific details, determined in the Ordinance on official business trips and specializations abroad. The employer is required to provide the posted employee, additionally to his monthly salary, with:

travel expenses in the amount of the expenses actually incurred by the shortest and most economic route, unless the person posted uses in some way a form of free travel
daily and accommodation costs in amounts and currencies according to Annex No 2 of the Ordinance on official business trips and specializations abroad and according to the conditions in the same Ordinance, as the employer is entitled to determine other than the established in Annex No 2 amount for daily allowances as long as it does not exceed twice the amount of the statutory quotas (in case the host country provides full board in kind, the posted persons should be paid 30% of the amount of their daily allowances)
medical insurance for the time of posting.

Specific Rules

In accordance with the requirements of Directive 96/71/EC Bulgarian legislation introduces a specific rule, stating that when the period of posting within the providing of services in another Member State of the EU is longer than 30 calendar days, the parties should reach an agreement for at least the same minimum working conditions during the term of posting as the established for employees performing the same or similar work in the host country with regard to:

the duration of the work day and the duration of the breaks between work days and weekend breaks and the break at the end of the work day
the duration of the paid annual leave
the amount of the salary
additional payment for extra hours
occupational health and work safety

The enterprises, providing temporary employment within the providing of services in another Member State, must also provide the posted employees with at least the same minimal working conditions, as established for works and employees, performing the same or similar job in the host country.

Insurance

Before going on a business trip, the employee must receive an A1 form from their employer, which is published by the Labour Inspectorate in Bulgaria. This form allows the employee and their dependents to remain part of the domestic social security system. Condition for this is the posting in the Member State to be for a no longer than two years period.

The employee must be able to submit the A1 form to the authorities at any time of their stay in the Member State, where they are posted. If the employee does not do that, they can be required to pay their social contributions there. However, if the employee is examined and has a valid A1 form, the host Member State is obliged to recognize it.

If after the end of the posting the employee wants to keep insurance in their home country for a second period of posting abroad, there should be a break of at least two months between the two business trips. If the employee continues to work abroad without such interruption they will automatically receive the status of “expatriation person”, which means that they will have to pay social security contributions in the country in which they are posted.

An exception of this general rule would be there only if the employee has failed to finish the job, pointed in the A1Form, due to unforeseen circumstances (illness, bad weather, late deliveries, etc.). In this case, the employee or their employer can request an extension of the initial period of posting to the completion of the planned work, without observing the break of two months. Extension of the term should be requested by the issuing authority before the end of the initial posting period. However, the total period of time, during which the employee will be able to work in the host Member State and to remain socially insured in their home country, remains restricted to two years.

The article has been published in Bulgarian, in Capital Daily.