Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 has created the European Enforcement Order for uncontested claims and Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 has established the European small claims procedure.
Summary proceedings for the issuance of a writ of execution and enforcement within the territory of Bulgaria may be used when a European Enforcement Order has been issued in accordance with Regulation (EC) No 805/2004 or on the basis of a judgment given in a small claims procedure (where the value of the claim does not exceed EUR 2 000, excluding cases relating to the legal capacity of natural persons, personal rights, maintenance, rights in property, wills and succession, bankruptcy and insolvency, employment law, or arbitration).
The following conditions are set out in Regulation (EC) No 805/2004 for the application to be granted:
- a judgment given in another EU Member State (Member State of origin) in civil or commercial matters is to be provided;
- the application has to be filed with the competent authorities of the Member State of enforcement; and
- the application has to be supported with a copy of the judgment which satisfies the conditions necessary to establish its authenticity and a copy of the European Enforcement Order certificate, as well as a transcription or a translation of the certificate in the official language of the Member State of enforcement.
The Bulgarian court which is competent to rule on the application for issue of a writ of execution is the regional court at the debtor’s permanent address or principal office of business or at the place of enforcement.
The application will be granted provided that it is in compliance with the requirements which are set out in the Regulation and with the provisions of the Code of Civil Procedure (CCP), which is the mandatory procedure of the Member State of enforcement.
The court has to check whether the claim can be granted with the means provided under the Bulgarian laws and, if this proves impossible, the court rules on substitute enforcement to satisfy the creditor. The regional court has to verify ex officio the fulfillment of all formal requirements, including the link between the judgment and the European Enforcement Order certificate.
The verification covers also the legitimation of the person applying for the issuance of a writ of execution. No transfer of the contested right in the course of the procedure and after the judgment was given can be taken into consideration by the court when it rules on the application for a writ of execution due to the strictly formal nature of the proceedings. The exception to this rule is the universal legal succession (heirs and universal successors) when the judgment is enforced without their participation. Applications lodged by transferees are not granted.
Writs of execution may be requested in this procedure provided that enforcement grounds exist in the form of a judgment, a court settlement or an authentic instrument on an uncontested claim certified as a European Enforcement Order.
Furthermore, the Bulgarian court has the powers to decide whether the claim which is the subject-matter of the enforcement application is uncontested in accordance with Regulation (EC) No 805/2004. A claim is regarded as uncontested if:
- the debtor has expressly agreed to it by admission or by means of a settlement which has been approved by a court or concluded before a court in the course of proceedings; or
- the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of the court proceedings; or
- the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings, provided that such conduct amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin; or
- the debtor has expressly agreed to it in an authentic instrument.
Unlike the first three cases in which court proceedings are involved and the statement or action of the debtor has been certified in the course of the court proceedings, the last option requires the express agreement of the debtor given in an authentic instrument. Generally, authentic instruments are those which have been drawn up by a notary public or another authority that has the powers to attest to express statements made before it. The debtor’s admission has to cover not only a fact that is not in favour of the debtor but also an express statement on the debtor’s specific pecuniary debt with specific parties to the legal relationship, the legal fact which constitutes a cause of action, the amount of the debt or the repayment schedule, if appropriate.
Any admission on part of a representative or proxy of the debtor, acting on the basis of a general power of attorney, even if it is made before the relevant competent public authority and all the features of the debt are specified, will not be regarded as enforcement grounds since it is not an express statement by the debtor himself and therefore the application for a write of execution will not be granted.
The court ruling on the application for a writ of execution in the summary enforcement procedure is subject to appeal before the relevant competent court of appeal, whereas the appellate judgment may be challenged before the Supreme Court of Cassation. The appeal will not suspend the enforcement. A possible suspension is effected at a decision of the court which has issued the ruling on the enforcement on the basis of the writ of execution. The court may suspend the enforcement, having examined the specific claims of the debtor and the availability of evidence that puts to question the existence of grounds for enforcement in accordance with Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 has created the European Enforcement Order for uncontested claims.
In the light of the scarce case law of the Bulgarian courts in the summary enforcement on the basis of a European Enforcement Order for uncontested claims or a European small claims procedure, we could conclude that this type of enforcement is not the common choice of an enforcement procedure in Bulgaria.