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13-11-2018 12:07
Key Amendments to the Administrative Procedure Code


The Bulgarian Parliament has recently adopted the most significant amendments to the Administrative Procedure Code (APC) since its adoption in 2006. The amendments concern, among others, the fields of e-justice, summoning and the competence of administrative courts to hear cases. Besides, a number of new important rules have been adopted regarding the procedure for reviewing first instance cases and the cassation proceedings. Supposedly, the purpose of the amendments is to facilitate the workload of the busiest administrative courts and, more generally, to smooth out the administrative procedure on both administration and court level.

Some of the amendments will become effective immediately, i.e. as from their promulgation in the State Gazette on 18 September 2018 and others will be postponed accordingly. The main part of the amendments will come into force as from 1 January 2019 and the amendments concerning the e-justice will become effective as of 10 October 2019.

Changes in the field of Cassation Proceedings

(i) Increase of cassation appeal fees

Some of the most criticized changes introduce significant increase (about 14 times) of the state fee for cassation appeal. For citizens, sole traders, state and municipal authorities and other persons with public functions and organizations providing public services, the fees are increased from BGN 5 to BGN 70 and for legal entities and civil organizations - from BGN 25 to BGN 370. 

If the case has a material interest, the following fees are introduced:

• for interest less than BGN 10 million – 0.8% of the interest, but not more than BGN 1700;
• for interest over BGN 10 million – fixed fee of BGN 4500.

Even if the case has a definite material interest, the cassation appeal fees in cases about pension, health and social insurance are BGN 30 for citizens and sole traders and BGN 200 for legal entities, state and municipal authorities. The tariffs of state fees collected by the first-instance courts have not changed. They will remain BGN 10 for citizens and BGN 25 for legal entities and organizations. The hidden reason behind such increase is reducing potential abuses of the right to trial and the uncontrolled challenge of judgments from non-governmental organizations. 

(ii) New requirements concerning the statement of cassation appeal

The recent changes provide for а mandatory countersigning of the cassation appeal by a lawyer as a condition for its regularity, except from the cases brought under the Administrative Violations and Sanctions Act, cases concerning pension, health and social security as well as cases where the appellant is exempt from paying state fee or is an imprisoned person. The countersigning is not necessary if the appellant has legal capacity, proven by the respective official document.

(iii) Introduction of closed sessions before the Supreme Administrative Court (SAC)

The amendment of Art. 217, para. 2 of the APC provides that the cases held before a three-member panel of the SAC will be heard in closed session, i.e. without the participation of the prosecutor and the parties. The case could only be heard in public hearing at the explicit request of one of the parties or upon the ruling of the reporting judge, which could not be subject of appeal itself. The cases before a 5-member panel of the SAC will be heard in public hearings as well as those, where the cassation instance is the only one court instance.

According to the legislator, this amendment would speed-up the procedure before the SAC, as in closed sessions the court may rule on a larger number of cases, avoiding the problem of limited number of halls in the SAC.

(iv) Removal of the cassation instance for certain administrative acts

The legislator has removed the possibility for cassation control over some administrative acts issued under the Access to Public Information Act, the Social Assistance Act, the Family Allowances Act, the Social Security Code, the Legal Aid Act, the Tax and Social Insurance Code and the Agricultural Land Conservation Act. Therefore, the judicial appeal of administrative acts issued within the framework of those legislative acts will be possible only before the respective, territorially competent administrative court which judgment will be final.

New Rules for Material and Territorial Jurisdiction in the Administrative Procedure

Pursuant to the amendments, appeals against individual administrative acts may be brought before the administrative court in the region of the permanent address or the seat of the appellant unlike the current situation, where cases are brought as per the seat of the respective administrative body whose act is being appealed. So far, only the administrative courts in the five regions of the appellate courts were competent to hear tax cases, i.e. the administrative courts of Sofia, Plovdiv, Varna, Burgas and Veliko Tarnovo. This amendment enters into force immediately, as opposed to the other changes, which will enter into force in 2019. The amendment aims to discharge the workload of the busiest administrative courts and to bring the administrative justice closer to citizens and the legal entities. However, the current address of the appellant is not considered by the legislator and may create inconvenience for some citizens in order to facilitate the access to justice. 

Tacit Consent

The new amendments introduce the principle of a “tacit consent” as opposed to the „tacit refusal”, currently existing and known to the Bulgarian administrative law since its inception. Pursuant to the newly adopted principle, the omission of the administration to act upon a request from legal or natural person for issuance of administrative act within the statutory deadline will be deemed a tacit consent (proven by a declaration) and the addressee of the act will be therefore entitled with the respective rights as the requested administrative act had been actually issued. However, this principle would be applied only if the requested administrative act creates only rights for the addressee and no third parties are involved in the procedure.

Administrative Agreement

One of the important changes of the APC provides for amendment of the administrative agreement regulation. Pursuant to the changes, natural and legal persons may enter into agreement with the administration on matters of significant public interest only if such option is explicitly provided for by law (as opposed to the current version where no such condition exists). Moreover, the grounds for invalidity of the administrative agreements would be both those for invalidity of an ordinary civil agreement under the Obligations and Contracts Act and those for invalidity of administrative acts, regulated by the APC itself.

Sanctions for the Administration in Case of Omission to Act

Pursuant to Art. 58 of the APC the administration’s omissions to act are considered as a tacit refusal without any sanctions for the administration. According to the amendment of Art. 174 in case of a tacit refusal, the court will send a copy of its decision to the relevant bodies which will realize the administration’s responsibility.

Electronic Communication and e-Justice

In order to facilitate e-justice, state authorities and lawyers are required to provide an e-mail address where they can receive the summons and other court documents, related to specific administrative and court proceedings. Citizens have the right to choose to provide an e-mail address or not. Additionally, the administrative authorities will collect ex officio all evidence found in other administrative bodies or individuals and organizations in attempt to facilitate the entire administrative procedure.

Changes in the Proceedings for Compensation under the APC

The new amendments introduced a number of changes in the claim proceedings for compensations due as a result of unlawful acts or omissions of the state administration, regulated by the APC. Most notably, claims based on unlawful administrative acts or omissions, apparently violating the EU law, shall be also reviewed under Chapter 11 of the APC “Proceedings for Compensation”.

Most of the new amendments were widely criticized by the President of the Republic of Bulgaria, some legal practitioners and public organizations. Significant part of the changes (16 amended provisions in total), including the removal of the possibility for cassation appeal regarding some administrative acts, the possibility for closed sessions before the Supreme Administrative Court and the material increase of the cassation appeal fees, have been challenged by the President and the Ombudsman before the Constitutional Court, where the proceedings are now pending.

According to the critics, the changes introducing the increase of the state fees did not correspond to “the socio-economic conditions, the incomes of the citizens and the level of inflation” and contradict to Art. 60, para. 1 of the Bulgarian Constitution and violate the citizen’s rights of legal protection. The amendments made impossible for citizens and legal entities to challenge the administrative acts of high material interest.

In addition, this is the first amendment of the state fees, introduced by law, depriving citizens and legal entities of the possibility to challenge the amount of the fees. The Ombudsman also criticized the amendments, having the same considerations that the fees did not correspond to the economic reality and violate citizens’ fundamental rights. The introduction of a “material interest” fee, which is frequently unclear and difficult to define in most administrative proceedings, provided for unequal application of this rule, which was in detriment to the citizens’ access to justice as the type and the amount of court fees are part of the guarantees to the principle of access to justice. Similar critics for contradiction to the constitutional right of justice were voiced with regard to the closed sessions at the cassation instance, introduced with the amendments.

This information is not intended as legal advice. Readers should seek specific legal advice before acting with regard to the subjects mentioned herein.

DGKV, an independent Bulgarian law firm, provides corporate, litigation and regulatory expertise to enable clients to achieve their goals. This communication is intended to bring relevant developments to our clients and other interested colleagues.

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