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Some Issues of the New CCP and International Forced Enforcement

Guarantees for Enforcing Claims in International Exchange The globalisation and integration processes of the states in the international community embrace ever more intensively our country. In the last two decades we have witnesses the transition from a state-regulated economy to a market economy, which was carried out with the active participation of foreign investments and the economic activities of foreign entities. Foreign entities have acquired shares in Bulgarian enterprises and have taken part in the foundation of trading companies in Bulgaria for performing commercial operations. Especially pronounced in recent years is the interest of foreign entities in immovable property in the country. Transnational companies enter our country by establishing their market presence through distribution of their products on the Bulgarian market, as well as through "exported" manufacturing. The accession of the Republic of Bulgaria to the European Union has contributed to further consolidation and strengthening of the international economic relations. The Treaty establishing the European Community, in Articles 23, 39, 43, 49 and 56, establishes the principles of free movement of goods, services, people and capital within the Community. Art. 65 of the Treaty confers legislative powers on the Community to adopt measures in the field of judicial cooperation in civil matters having cross-border implications, including the recognition and enforcement of judgments in civil and commercial cases. The increased international exchange of goods, the foreign investments and the economic activity of foreign entities in the Republic of Bulgaria require the presence corresponding legal guarantees for enforcing obligations. Along with the guarantees provided for by the Law on Obligations and Contracts and the Commercial Law, such as the sanctions for non-enforcement or delayed enforcement (moratory interest, forfeit, down payment, compensation for suffered losses and missed opportunities) and the possibility to establish a collateral (mortgage, pledge, bail[1]), the possibility for forced enforcement of the obligations with the cooperation of the state in the face of its tribunals and forced enforcement authorities is an essential and prerequisite guarantee. Realising this prerequisite the legislator has been carrying out reforms in the civil process through corresponding amendments and supplements of the Code of Civil Procedure for years. An important reform towards accelerating and increasing the efficiency of the enforcement process has been carried out with the Law on Private Judicial Officers (Prom. SG 43/20 May 2005, amended and supplemented).  The next crucial step has been the passing of the new Code of Civil Procedure (CCP) (prom. SG 59/20 July 2007, in force as of 1 March 2008, amended and supplemented SG 50/30 May 2008, in force as of 1 March 2008). The new CCP has completely repealed the CCP from 1952. The coming into force of the new CCP on 1 March this year was welcomed with anxiety and apprehension by the legal community of our country. The long-standing application of the CCP from 1952 created a significant judicial practice in its application, there are a number of works and publications on civil procedure law and different related issue written while the repealed instrument was still in force - in the first place, the monumental work of Prof. Zhivko Stalev "Bulgarian Civil Procedure Law", undergone eight editions. Regardless of its merits or disadvantages, the new CCP is a fact and the active legal practitioners are faced with the necessity, with the difficult and important task of interpreting and applying its provisions. Quite a lot of issues are addressed in connection with the new legal regime of forced enforcement under the CCP regulated in Part Five "Enforcement Proceedings". The issues arise as early as in connection with the fundamental issues of the enforcement process – the prerequisites for forced enforcement. As it is well-known, the prerequisites for forced enforcement which determine the presence of right of forced enforcement, are three: enforceable right, enforcement order and writ of execution (as described by Zh. Stalev, Bulgarian Civil Procedure Law, S., 2004, p. 723-724). The new regime of enforcement proceedings, however, raises a few discussion issues, which we hope to pay attention to in this article without claiming to give final answers or indisputable interpretations.  Enforcement Order and Ordinance Proceedings under the New Code of Civil Proceedings  At the time of the CCP from 1952, the enforcement grounds and the proceedings for issuing a writ of execution were regulated in Part Two "Claim Proceedings" (Art. 237-255 of the CCP). Even if it could be disputed from the point of view of the formal juridical logic, the systematic place of the enforcement grounds and the proceedings for issuing a writ of execution reflected the notion that the proceedings might become contradictory and adversary at a later stage, when appealing against the definition for issuing a writ of execution, when making objections under Art. 250 of the CCP (repealed) or when lodging a claim under Art. 254 of the CCP (repealed)[2]. This shows that the institution of enforceable right could have been done simultaneously with its forced enforcement[3]. In the new CCP the enforcement grounds are listed in Art. 404 of the CCP. After a close reading of the provision one realises that the law alludes to the so called "judicial enforcement grounds" only – judgments and other instruments decreed by a court or tribunal, including a foreign court or court of arbitration. The provision lacks the long list of "non-judicial enforcement grounds" stipulated in the repealed CCP, and namely: documents and excerpts from accounts, certifying the claims of banks, state institutions and municipalities, the National Health Insurance Fund and the Regional Health Insurance Funds; documents and excerpts from accounting books, certifying the obligations of employers concerning monetary claims of workers and employees in employment relations; decrees of the administrative organs through which the enforcement clearance is assigned to the civil courts; promissory notes, bills of exchange, cheques and other promissory securities, bonds and interest coupons thereof; enactments; arrangements and other contracts with notary-certified signatures; excerpts from the Central Register of the Special Pledges for registered sales contract with retaining the property until the price has been paid in full and leasing contracts; concession contracts; enacted instruments for establishing private, state and municipal claims; other documents on the basis of which the law allows the issuing of a writ of execution (see Art. 237, letters "c" to "m" of the CCP /repealed/). An analogue of the non-judicial enforcement grounds can be found only in Art. 417 of the CCP, entitled "Enforcement Order Based on a Document". Essential novelty in the CCP in comparison to the repealed law are the ordinance proceedings, regulated in Chapter ХХХVІІ. The new procedure law provides for a possibility for issuing an enforcement order in the cases under Art. 410, para 1 of the CCP (for which no document is required to be submitted) and under Art. 417 of the CCP (on the basis of submitting any of the documents listed in the provision[4]). The ordinance proceeding is regulated as an integral part of the forced enforcement, as a proceeding preceding the initiation of the real enforcement. If we make an analogy between ordinance proceedings under the new CCP and proceedings for issuing a writ of execution based on non-judicial enforcement grounds under the old CCP, we will establish certain similarities as well as considerable differences. The proceedings for issuing a writ of execution under Art. 242-244 of the CCP (repealed) included an inspection, performed by the court, of the enforcement grounds – whether the enforcement grounds were externally regular and established claims to be subjected to forced enforcement. In the proceedings for issuing an enforcement order under Art. 410, para 1 of the CCP no "enforcement grounds" (document certifying enforceable right) is submitted, and the applicant\'s statement for the demanded claim on particular legal grounds is sufficient for initiating the proceedings. The proceedings for issuing a writ of execution based on  non-judicial enforcement grounds under the CCP (repealed) comes closest to the proceedings for issuing an enforcement order based on a document under Art. 417 of the CCP and the possibility for the creditor to request of the court to rule immediate enforcement and issue a writ of execution. It is evident from the barely outlined characteristics of the ordinance proceedings that ordinance proceedings precede proceedings for issuing a writ of execution, regulated in Art. 405-409 of the CCP. Therefore, the enforcement order itself, as well as an enforcement order based on a document under Art. 417 of the CCP (non-judicial enforcement grounds under the repealed CCP), are actually "enforcement grounds" within the meaning of Art. 404 of the CCP, when a immediate enforcement is cleared or when the enforcement order has entered into force. If we rest our assumptions on the construction established in the civil procedure doctrine, it will turn out that the active enforcement process can have two types of enforcement grounds – documents under Art. 417 of the CCP and enforcement order (entered into force or cleared for immediate enforcement)! The idea of the enforcement order is to establish "uncontestability" of the claim. This legislative notion can be derived from Art. 414 of the CCP, which allows for the debtor to object the enforcement order in writing without having to ground (justify) his objection. This possibility to protect the debtor is a logical consequence of the fact that the claimant requests the issuing of enforcement order based merely on his personal statement that a certain person owes him. The debtor may confront this "unsubstantiated" statement with another one – a written objection that he does not owe anything. The order of immediate enforcement gives the creditor the advantage that the objection of the writ of immediate enforcement does not suspend the enforcement. This is justified because the enforcement order relating to which an immediate enforcement is decreed, is based on a document under Art. 417 of the CCP. The presence of such a document renders credible the existence of enforceable right and hence, so to say, supports the enforcement power of the enforcement order, at which the litigation on behalf of the debtor does not automatically lead to suspension of the forced enforcement. In view of the outlined arguments concerning ordinance proceedings, we deem it necessary to reconsider the enforcement grounds doctrine, previously supported by the repealed CCP. Only instruments certifying judicially established claims or claims regarded as "uncontested" should be considered as enforcement grounds under the active CCP, given the debtor has not pleaded for himself against the issued by the court enforcement order within the established deadline (i.e. ultimately this incontestability has to be established with the court\'s assistance).             The adopted by the legislator new permits and the retreat from the established enforcement process structures have already resulted in controversial interpretations by the courts of justice – in connection with submitted writ of execution applications based on non-judicial enforcement grounds pursuant to the CCP (repealed). Thus, for instance, some members of the Sofia Regional Court suspended as being inadmissible the proceedings relating to applications for issuing a writ of execution relating to a promissory note, submitted before the date of coming into force of the CCP (1 March 2008). The deciding members justified their actions with the immediate effectuation and the reverse power of the civil procedure law. As regards court proceedings pending as of 1 March 2008 under Art. 242 and the succeeding article of the CCP (repealed), it was decreed that the new CCP was to be applied because there were considered no exceptions from the listed general principles for acting at the time of the civil procedure law. The applications under Art. 242 оf the CCP (repealed) for issuing writs of execution were not claim applications due to which they were considered inapplicable as regards their hearing and ruling under §1, para 1 and §2, para 1 from the transitive and final provisions of the new CCP. At the same time, the judges also founded no analogue to the proceedings for issuing a writ of execution based on non-judicial enforcement grounds under the new CCP. The deciding members did not accept that § 1, para 1 and § 2, para 1 from the transitive and final provisions of the CCP endorse the principle that the procedure relation directed at realising a claim which has arisen under the conditions of the repealed law should develop and end up following the old order. Pursuant to the argument from major to minor (per argumentum a fortiori, argumentum a maiore ad minus), the retained validity of the repealed procedure law concerning claim proceedings should also find its application in the proceedings for implementation of rights based on non-judicial enforcement grounds. Indeed the application for issuing a writ of execution on the basis of non-judicial enforcement grounds under the repealed CCP is not a claim application but has an analogous  function for requesting the judicial protection of a violated material right addressed to the competent juridical body[5].            However, it should be mentioned that the ordinance proceeding is a novelty in the Bulgarian legal reality. After its liberation, in Bulgaria was in force a Law on Ordinance Court Proceedings from 1897 (ratified with an edict dated 30 November 1897, No. 206, prom. SG  277/15 December 1897), which legal regulation borrowed its fundamental ideas from the German and Austrian legislations[6]. The Law stipulated that if the subject of the claim is monetary receivable, the plaintiff may ask that an order for payment is issued against the defendant, provided that all circumstances on which the plaintiff rests his case are certified with a notary instrument or private instrument (attested in notary order) as far as such instruments of external parties do not rise suspicion (Art. 2). It was also stipulated the issuance of enforcement order relating to bills of exchange and promissory notes (Art. 14). The general idea of the Law was to give enforcement power to instruments, certifying receivables (claims), being uncontested to a great degree due to the nature of the instruments certifying them (officially certified documents or instruments with formal content).          Forced Enforcement of Foreign Instruments under the Code of IPL and Community Law        With the coming into force of the Code of International Private Law (CIPL) (prom. SG 42/17 May 2005) the principle of free circulation of court judgments, which prevents and limits controversial judicial practices and evades judicial competences, was introduced for the first time[7]. The recognition of a foreign judgment is given by the authority before which it is claimed, i.e. no intermediary instrument of a Bulgarian court is needed (Art. 118, para 1 of the CIPL). In case of a dispute regarding the conditions for recognition of the foreign judgment, a claim may be lodged before the Sofia City Court (Art. 118, para 2 of the CIPL). On the other hand, the clearance of the enforcement of a foreign court judgment requires that a claim is lodged before the Sofia City Court (Art. 119, para 1 of the CIPL). In other words, the CIPL grants direct recognition of a foreign judgment when the objective is to only spread the scope of the adjudged matter over the Bulgarian legal system (e.g. decree of dissolution of marriage), without seeking forced enforcement on the territory of the Republic of Bulgaria (e.g. enforcement of obligation to support a child or former spouse). In case that it is a forced enforcement that is sought after, it would be necessary to go through exequatur proceedings that have been regulated as claim proceedings for clearing judgment enforcement. Cleared for enforcement are only foreign judgments that have entered into force (arg. Art. 119, para 2 of the CIPL). These rules apply only for the enforcement of judgments and instruments, decreed by the authorities of third states - outside the European Union. For the enforcement of judgments and instruments by authorities of EU Member States, the rules of the Community Law and Part Seven of the CCP shall apply.            The restoration of the ordinance proceedings in the objective procedural law of the Republic of Bulgaria offers the opportunity to request recognition of enforcement orders issued by Bulgarian courts in other EU Member States pursuant to Regulation No. 44/2001[8]. According to Art. 33 of Regulation No. 44/2001 a court judgment decreed in one Member State is recognised in another Member State with no special procedure requirements whatsoever. For the purposes of this Regulation "judgment" refers to any judgment given by a court or tribunal, whatever the judgment may be called, including a decree, order, decision or writ of execution (the underlining has been done by the authors- А.Т., М.B.), as well as the determination of costs or expenses by an officer of the court (Art. 32). The application for clearance of a Bulgarian enforcement order shall be submitted to the competent authority in the Member State of enforcement, specified in a list – Appendix II to the Regulation (Art. 39), and the enforcement procedure is regulated in compliance with the procedure legislature of the Member State of enforcement of the obligation.         The above rules shall also apply on the territory of the Republic of Bulgaria when enforcing a judgment (including writ of execution) issued by another Member State. The Bulgarian legislator has determined general rules for the proceedings relating to the recognition and clearance of enforcing judgments and other instruments, decreed by a Member State (Chapter 57 "Recognition and Enforcement of Judgments and Instruments regarding the Effectiveness and Validity of the European Union Law"). All other issues shall be governed by Regulation No. 44/2001.        A judgment or another instrument shall be recognised by the authority before which it is claimed based on a certified copy and accompanying certificate when an instrument of the European Union requires it (Art. 621, para 1 of the CCP)[9].      Enforcement clearance is performed based on an application submitted by the creditor to the District Court of enforcement and where the permanent address or registered office of the debtor is (Art. 623 of the CCP. The court hears the conditions for clearance pursuant to Art. 33-37 of the Regulation No. 44/2001 and issues an "enforceability declaration". The proceedings for clearing the enforcement of a judgment decreed by a Member State authority, unlike the proceedings under Art. 119 of the CIPL, are not claim proceedings. This way of enforcement clearance is in line with the principle of free movement of judgments.       It should be mentioned that the possibility to demand forced enforcement abroad based on an enforcement order issued by a Bulgarian court suffers one considerable limitation provided for by Art. 411, para 2, items 3 and 4 of the CCP. The court is obligated to refuse an enforcement order, when the debtor has no permanent address or registered office on the territory of the Republic of Bulgaria, or when he has no habitual residence or place of business operation on the territory of the Republic of Bulgaria[10]. The indicated grounds for refusal for issuing an enforcement order lie on the notion for a presence of strong links of the debtor (physical or legal entity) with the territory of the country – presence of permanent address or registered office, habitual residence or place of business operation, respectively, in our country. The question is raised up whether these requirements of links with the territory of Bulgaria are alternative or cumulative. In our opinion the requirement of permanent address should be applied for physical entities - Bulgarian citizens (in compliance with the provisions of the Civil Registration Act), while foreign entities should meet the requirement of "habitual residence" – a basic criterion for defining applicable law in legal relations with international strain and international competence of courts of justice and other authorities[11]. The issue is further complicated by the fact that the "habitual residence" criterion is not formal (related to administrative registration, filing an application to the local authorities, etc), but factual. When shaping it, facts of personal and family nature which testify to strong links between the entity and his place of residence should be taken into account[12]. It is difficult (or impossible) in the ordinance proceedings to institute presence of habitual residence of the debtor in the Republic of Bulgaria, in view of its factual character which could normally be a point to prove in a claim process. In the best of cases, the presence of habitual residence of a foreign entity may be considered based on evidence (circumstantial evidence) – presence of address registration, an issued permit for extended or permanent residence of a foreigner, a certificate for residence of an European Union citizen or a member of his family, a finalised long-term lease agreement, etc. The idea of this legislative decision is to find the claim uncontested which cannot be achieved if the debtor has no strong links with the territory of the Republic of Bulgaria. However, we feel that there will arise complications in the practice of applying this legal requirement[13].      The CCP does not explicitly stipulate whether the requirements of 411, para 2 of the CCP should be also applied to the proceedings for issuing an enforcement order based on a document under Art. 417 of the CCP but the considerations of the legislator, which are in the core of these requirements, should apply to these proceedings as well.             Articles 619 and 620 of the CCP govern the proceedings for issuing certificates for European enforcement order for uncontested claims. The Certificate under Regulation No. 805/2004[14] is issued upon application by the party from the Court of First Instance which heard the case. The ruling which ratifies the application for a certificate cannot be subject to appeal or communicated to the debtor. The ruling which entirely or partially rejects the application is subject to appeal through filing a private complaint, from which no copy for serving is presented.    Upon clearance of enforcement of a judgment, decreed by a court or tribunal of an EU Member State in another Member State, it is a matter of rather simplified exequatur proceedings (recognition and enforcement of foreign judgments) before the judicial authority of the state of enforcement.. In the case of the certificate for European enforcement order, the enforcement power of the instrument comes from an authority of the state of origin which significantly relieves the creditor. The Court of First Instance, which heard the case, issues upon request of the party, a certificate for recognition and clearance of enforcement of Bulgarian judgment in another Member State (Art. 620, para 1 of the CCP).    It should be kept in mind that the concept of "uncontested claim" within the meaning of Regulation No. 805/2004 is a broad one, covering claims which are not established by a judgment but by another instrument – arrangement or the so called "authentic instrument"[15]. Unfortunately the Bulgarian procedure law does not permit forced enforcement based on a document which is not listed in Art. 404 of the CCP, and this provision alludes to the so called "judicial enforcement grounds" only. Certain documents[16] may have enforcement power which is not direct, but moderated through the successful completion of ordinance proceedings with an enforcement order entered into force or enforcement order of immediate enforcement. At the same time, by virtue of Regulation No. 805/2004 Bulgaria is obligated to recognise enforcements of obligation on its territory, implemented on the basis of arrangements and authentic instruments, drawn up in a Member State, without the Bulgarian citizens to be able to avail of the reciprocal privilege for simplified forced enforcement in another Member State because Bulgarian law does not provide for certifying non-judicial instruments such as the European Enforcement Order.                      The next step in applying the principle of mutual recognition of decisions of civil and commercial cases and in creating a unified and simplified procedure for receiving a court instrument for uncontested claims is Regulation No. 1896/2006 of the European Parliament and the Council creating a European order for payment procedure [17] (this Regulation is applied from 12 December 2008). This Regulation has been approved as a measure of the Community pursuant to Art. 61, letter "c" and Art. 65, letter "c" of the Treaty establishing the European Community.             Regulation No. 1896/2006 is applied to "cross-border cases" which are defined as cases where at least one of the parties is domiciled or habitually resident Member State other than the Member State of the court pleaded. The domicile is determined pursuant to Art. 59 and 60 of Regulation No. 44/2001 (Art. 3 of Regulation No. 1896/2006). For the purposes of Regulation No. 1896/2006 the competence is determined in compliance with the corresponding rules of the Community Law and especially Regulation No. 44/2001 (Art. 6 of Regulation No. 1896/2006).  In this connection it is enough to mention that the fundamental principle in determining of the competent court under Regulation No. 44/2001 is according to the domicile of the defendant.              The European order for payment procedure is introduced in the Bulgarian legislature with the provisions of Chapter 58 of the CCP. Article 625, para 1 of the CCP stipulates that the application for a European order of payment shall be submitted to the District Court of enforcement or where the permanent address or registered office of the debtor is. The following conclusions can be drawn from the analysis of the provision: 1/ when it is referred to the District Court where the permanent address or registered office of the debtor is, what is meant is a request for a European order of payment by an applicant who is domiciled in a EU Member State against a debtor - a citizen or a legal entity domiciled in the Republic of Bulgaria (it is inadmissible to have a request for a European order of payment by an entity domiciled in the Republic of Bulgaria against another such entity, because this way the requirement for a presence of a "cross-border case", the meaning of which was explained, would not be met); 2/ when the enforcement is to take place in the Republic of Bulgaria, a Bulgarian citizen or a legal entity may request from the Bulgarian court to issue him a European order of payment against an entity which is domiciled in another EU Member State. In the counter-speculation – enforcement in the Republic of Bulgaria of a European order of payment, issued by a court in another Member State – it is necessary for a writ of execution to be issued by a Bulgarian court, i.e. the enforcement of a European order of payment is not directly allowed on our territory (it is a different question whether this is in line with the principle of free movement of decisions and mutual trust in the jurisprudence of the EU Member States).                  In conclusion it should be mentioned that it is only the initial phase of the enforcement process in international forced enforcement that is settled by instruments of the European Union. The actual means of enforcement and enforcement activities are settled by the national legislature, and are within the jurisdiction of the respective competent authorities of the state of enforcement. So far no possibility has been provided for Bulgarian enforcement authorities to conduct forced enforcement in another Member State, and similarly for forced enforcement authorities of a Member State to conduct enforcement in our country. Certain powers are given as an exception to foreign authorities outside the territory of their country – in connection with insolvency proceedings. Article 18 of Regulation 1346/2000[18] allows the liquidator (syndic), assigned by the court of opening the insolvency proceedings to exercise all powers bestowed on him by the Member State of origin of the insolvency proceedings, as long as other insolvency proceedings are not opened or collateral provided..       Alexander Tonev – lawyer  Milen Bazinski – private judicial officer  

 

 

[1] The different types of contractually established securities are regulated in the Law on Obligations and Contracts – mortgage, pledge, bail, solidary responsibility, the Commercial Law – commercial pledge,  the Law on Special Pledges – special pledge for movable assets, claims, aggregates, commercial enterprise, company shares and so on, the Financial Collateral Arrangements Act – pledge or preliminary contract concerning securities or account receivables, the Civil Aviation Act – pledge for aerial devices, the Merchant Shipping Code  – the so called "sea mortgage" and so on. Some of the means of securing the obligations appear ex lege – lien, legal pledge, moratory interest, obligation for remedies, objection to breach of contract, solidary responsibility (relating obligations for prohibited harming assumed in commercial deals, unless agreed otherwise).  

[2] When the repealed CCP from 1952 was in force, the contested (and not  protective) nature of the writ of execution proceedings was held up by Prof. Zhivko Stalev, Bulgarian Civil Procedure Law, S., 2004, p. 735.

[3] This appropriate note belongs to Mr. Borislav Belazekov, for which the authors are grateful.

[4] Instruments of administrative bodies, according to which the enforcement has been assigned to civil courts of justice; documents and excerpts from accounting books certifying claims of state institutions, municipalities and banks;  notary instruments, arrangements or other contracts with notary-certified signatures; excerpts from the Register of the Special Pledges for registered collateral and commencement of the enforcement; excerpts from the Register of the Special Pledges for registered sales contract with retaining the property until the price has been paid in full or leasing contracts; pledge contracts or mortgage instruments under Art. 160 and Art. 173, para 3 of the LOC; enacted acts for establishing private, state or municipal claims when their enforcement is conducted pursuant to the CCP;  instruments for deficiency in accounts; promissory notes, bills of exchange or equal promissory securities, as well as related bonds and coupons.    

[5] The controversy in question was removed by the Law on Amendment and Supplement (LAS) of the CCP, prom. SG 50/30 May 2008 which was given reverse power. Together with the LAS of the CCP, a new paragraph 9 to §2 of the transitive and final provisions of the CCP was created, stipulating that the writ of execution proceedings relating applications submitted by 1 March 2008 shall be processed according to former provisions, along with a new § 47, pursuant to which the suspended proceedings under §2 of the transitive and final provisions of the CCP shall be reinstated by the Court ex officio.

[6] See М. Pavlova, Promissory notes and Bills of Exchange. S., 1998, p. 183. 

[7] К. Marinov, the Code of IPL with introduction. Selected Instruments pursuant to IPL, S., 2005, p. 19.

[8] Regulation (EC) No. 44/2001 of the Council from 22 December 2000 relating to the competence, recognition and enforcement of judgments of civil and commercial cases (publ. in the Official Journal of the European Communities, series L, No. 12 from 16 January 2001). The texts of the European Community instruments are used, as published in Collection of "International Private Law – Part І" by publishing house Sibi, 2007, compiled by Boryana Museva.  

[9] The provision has been amended with the LAS of the CCP (prom. SG 50/2008). In its first edited version, Art. 621, para 1 of the CCP required that the decision should have entered into force, which was in conflict of the provisions of Regulation No. 44/2001, which rests on the principles of free movement of judgments and mutual trust in the jurisprudence of the EU Member States.

[10] In such cases, the creditor will be interested to add an arbitration clause in the contract in order to be able to receive a forced enforcement in a simplified and speeded-up way – an arbitration decision based on which to get enforcement authorisation.

[11] E.g. Art. 4, para 1, item 1, Art. 5, Art. 6, para 1, Art. 7, Art. 9, etc, from the Code of International Private Law. 

[12] Thus Senior Researcher Dr. Tsv. Kamenova, The Habitual Residence as an Attachment in the International Private Law – in: Scientific works of the Institute for Legal Studies, Bulgarian Academy of Sciences, Volume II, 2005, p. 97.

[13] In order to complicate the question even more, it can be pointed out that Regulation No. 44/2001 uses the criteria "domicile" and not "habitual residence".

[14] Regulation (EC) No. 805/2004 of the European Parliament and the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (published in the Official Journal of the European Communities, series L, No. 143 from 30 April 2004).  

[15] Article 4, item 3 of the Regulation says: "Authentic instrument": а) a document which has been formally drawn up or registered as an authentic instrument, and the authenticity of which:      (i) relates to the signature and the content of the instrument; and      (ii) has been established by a public authority or other authority empowered for that purpose by the Member State in which it originates ; or  b) an arrangement relating to maintenance obligations concluded with administrative authorities or authenticated by them. 

[16] Indicated in Art. 417 of the CCP.

[17] Here is used the Bulgarian version available on the Internet at www.europa.eu 

[18] Regulation (EC) No. 1346/2000 of the Council of 29 May 2000 on insolvency proceedings (published in the Official Journal of the European Communities, series L, No. 160 of 30 June 2000)

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