Аppealing fines of Bulgarian Border Police imposed to Airlines

airline appeal fine Bulgarian courtMany airlines are fined by the Bulgarian Border Police because they are not aware of the liability to check if their passengers have a valid visa to enter Bulgaria. In most of the cases, the passenger has a valid visa to enter another EU country, but the flight to Bulgaria is just one of the legs of the journey.

Fines to Airlines are between €3000 and €5000

Because of the relatively recent accession into EU, Bulgarian Border Police are still not fully trained in the EU regulations. For example, if the passenger has a valid Schengen Visa for France, and flies to Bulgaria and then is transferred on another flight to Paris, the airline shouldn't be fined for letting the passenger on board. However, the Bulgarian Border police are following strictly the letter of the law of the Bulgarian Foreigners Act, namely:

[blockquote]

Article 20 Carrier, transporting foreigners by land, air or water to and / or from the Republic of Bulgaria, before performing the service must establish:

1.the validity of the travel document of the foreigner and the presence of Bulgarian visa , if required;

2. The availability of visa for the country / countries that the passenger wish to visit or through which they wish to pass, if needed, in the case of airport transit or transit through the territory of the Republic of Bulgaria.

(2) In cases where an foreigner is refused entry into the Republic of Bulgaria on the basis of default under par. 1, the carrier, transporting the foreigner is obliged at the request of the border control authorities at his own expense to return the passenger to the country from which he departed or to the country which has issued the travel document by which the foreigner has arrived, or in another country which he will be allowed to enter. In case the return can not be done immediately, the costs of stay the alien shall be borne by the carrier.

[/blockquote]

As seen from the quoted regulation, the airline will not only be fined, but will also incur extra costs on returning the passenger to either place of departure or to the place of issue of the visa/passport or to a third country.

Recovering paid fines or appealing the penalty notice by the Air carrier

According to the Bulgarian law, the penalty notice can be appealed in 14 days as of the day of delivery. Normally the delivery will be made to a representative of the airline. This could be also a ground handling company, acting on behalf of the air carrier.It is crucial that the air carrier appoints qualified aviation lawyer in Bulgaria to handle the litigation procedures in the local courts.

Furthermore, any extra costs made by the airline due to of unlawful acts of the Bulgarian Border police, can be recovered in case of successful court appeal.

Should you have an aviation claim in Bulgaria, call our legal team on 00359 52 605 997 or email Mr. Milen Hristov at milen@mhlegal.eu

Аppealing fines of Bulgarian Border Police imposed to Airlines

airline appeal fine Bulgarian courtMany airlines are fined by the Bulgarian Border Police because they are not aware of the liability to check if their passengers have a valid visa to enter Bulgaria. In most of the cases, the passenger has a valid visa to enter another EU country, but the flight to Bulgaria is just one of the legs of the journey.

Fines to Airlines are between €3000 and €5000

Because of the relatively recent accession into EU, Bulgarian Border Police are still not fully trained in the EU regulations. For example, if the passenger has a valid Schengen Visa for France, and flies to Bulgaria and then is transferred on another flight to Paris, the airline shouldn't be fined for letting the passenger on board. However, the Bulgarian Border police are following strictly the letter of the law of the Bulgarian Foreigners Act, namely:

[blockquote]

Article 20 Carrier, transporting foreigners by land, air or water to and / or from the Republic of Bulgaria, before performing the service must establish:

1.the validity of the travel document of the foreigner and the presence of Bulgarian visa , if required;

2. The availability of visa for the country / countries that the passenger wish to visit or through which they wish to pass, if needed, in the case of airport transit or transit through the territory of the Republic of Bulgaria.

(2) In cases where an foreigner is refused entry into the Republic of Bulgaria on the basis of default under par. 1, the carrier, transporting the foreigner is obliged at the request of the border control authorities at his own expense to return the passenger to the country from which he departed or to the country which has issued the travel document by which the foreigner has arrived, or in another country which he will be allowed to enter. In case the return can not be done immediately, the costs of stay the alien shall be borne by the carrier.

[/blockquote]

As seen from the quoted regulation, the airline will not only be fined, but will also incur extra costs on returning the passenger to either place of departure or to the place of issue of the visa/passport or to a third country.

Recovering paid fines or appealing the penalty notice by the Air carrier

According to the Bulgarian law, the penalty notice can be appealed in 14 days as of the day of delivery. Normally the delivery will be made to a representative of the airline. This could be also a ground handling company, acting on behalf of the air carrier.It is crucial that the air carrier appoints qualified aviation lawyer in Bulgaria to handle the litigation procedures in the local courts.

Furthermore, any extra costs made by the airline due to of unlawful acts of the Bulgarian Border police, can be recovered in case of successful court appeal.

Should you have an aviation claim in Bulgaria, call our legal team on 00359 52 605 997 or email Mr. Milen Hristov at milen@mhlegal.eu

Claim against ground handling company in Bulgaria

claims agains ground handling company BulgariaIf an airline has a claim against a ground handling operator in Bulgaria, most probably the claim will be resolved according to rules of the signed IATA Standard Ground Handling Agreement (SGHA). In extremely rare cases, the ground handling company in Bulgaria will have its own custom handling agreement. All major ground handling companies such as Swissport (servicing Sofia Airport through Swissport Bulgaria JSC) regularly update their SGHA when IATA produces a new draft.

Ground handling agent and carrier liability in Bulgaria

The liability of ground handling operators is typically set in Article 8 of the Main Agreement of SGHA. The text of this section shows that IATA has tried to make obligations fair to both air carrier and to the ground handling company, as the liability and indemnity are reciprocal. No claims shall be made if the ground handling company or the carrier have caused to the other party loss or damage unless:

[blockquote]

done with intent to cause damage, death, delay, injury or loss or recklessly and with the knowledge that damage, death, delay, injury or loss

[/blockquote]

As the ground handling company is dealing with passenger and cargo on behalf of the airline, any claims against the ground handler from third parties, are to be covered by the carrier third party liability insurance (also covered by the Warsaw Convention System and the Montreal Convention 1999). The SGHA identifies specific liability of the ground handling company if damages are caused to the aircraft hull (airframe). In that case, the appointed lawyer should look into the negotiated limits of liability set in the SGHA and identify what amount will be covered by the aircraft hull insurer and what amount by the ground handling company itself.  The agreement might have set unrecoverable amount threshold i.e. claims for damages less than $3000 shall not be sought.

Air carrier can seek compensation for cargo damage and loss not only for intentional acts or omissions of the ground handling agent but also for acts of negligence. Again, one should look into the particular SGHA, which identifies the limits of liability and indemnity.

Solving aviation disputes in the Bulgarian courts

The disputes between carriers and Bulgaria ground handling companies can be resolved in the jurisdiction agreed in the particular SGHA.The typical jurisdiction would be Bulgaria and the applicable law will be the Bulgarian law and competent courts will be the Bulgarian courts.

Instructing a local Bulgarian aviation lawyer with litigation expertise will be required in order to solve the matter as quick as possible. It is crucial to summon the ground handling company's insurer as a party of the case, so that the claimed amount is recovered quickly. Often if this is not done, the claim to the insurer is lost due to statute of limitations and the ground handling company might go bankrupt if they don't have the sufficient funds to pay for the damages. Unlike the rest of the world, the Bulgarian insurers will likely go to court, rather than settle out of court. In this case a litigation is a must if the airline want to recover damages or loss from the ground handling agent.

Claim against ground handling company in Bulgaria

claims agains ground handling company BulgariaIf an airline has a claim against a ground handling operator in Bulgaria, most probably the claim will be resolved according to rules of the signed IATA Standard Ground Handling Agreement (SGHA). In extremely rare cases, the ground handling company in Bulgaria will have its own custom handling agreement. All major ground handling companies such as Swissport (servicing Sofia Airport through Swissport Bulgaria JSC) regularly update their SGHA when IATA produces a new draft.

Ground handling agent and carrier liability in Bulgaria

The liability of ground handling operators is typically set in Article 8 of the Main Agreement of SGHA. The text of this section shows that IATA has tried to make obligations fair to both air carrier and to the ground handling company, as the liability and indemnity are reciprocal. No claims shall be made if the ground handling company or the carrier have caused to the other party loss or damage unless:

[blockquote]

done with intent to cause damage, death, delay, injury or loss or recklessly and with the knowledge that damage, death, delay, injury or loss

[/blockquote]

As the ground handling company is dealing with passenger and cargo on behalf of the airline, any claims against the ground handler from third parties, are to be covered by the carrier third party liability insurance (also covered by the Warsaw Convention System and the Montreal Convention 1999). The SGHA identifies specific liability of the ground handling company if damages are caused to the aircraft hull (airframe). In that case, the appointed lawyer should look into the negotiated limits of liability set in the SGHA and identify what amount will be covered by the aircraft hull insurer and what amount by the ground handling company itself.  The agreement might have set unrecoverable amount threshold i.e. claims for damages less than $3000 shall not be sought.

Air carrier can seek compensation for cargo damage and loss not only for intentional acts or omissions of the ground handling agent but also for acts of negligence. Again, one should look into the particular SGHA, which identifies the limits of liability and indemnity.

Solving aviation disputes in the Bulgarian courts

The disputes between carriers and Bulgaria ground handling companies can be resolved in the jurisdiction agreed in the particular SGHA.The typical jurisdiction would be Bulgaria and the applicable law will be the Bulgarian law and competent courts will be the Bulgarian courts.

Instructing a local Bulgarian aviation lawyer with litigation expertise will be required in order to solve the matter as quick as possible. It is crucial to summon the ground handling company's insurer as a party of the case, so that the claimed amount is recovered quickly. Often if this is not done, the claim to the insurer is lost due to statute of limitations and the ground handling company might go bankrupt if they don't have the sufficient funds to pay for the damages. Unlike the rest of the world, the Bulgarian insurers will likely go to court, rather than settle out of court. In this case a litigation is a must if the airline want to recover damages or loss from the ground handling agent.

Specifics on ship arrest in Bulgaria (Varna and Bourgas)

ship arrest in BulgariaАrresting a ship is a way to secure a maritime claim, while the claimant initiates the claim proceedings. We have described the procedures for ship arrest in Bulgaria before, but here we will clarify some prerequisites, necessary for the ship arrest. At MH Legal, we advise any claimant who will initiate a ship arrest to prepare the following minimal set of documents:

[list3]

  • Proof of registration for the claimant
  • Proof of registration of the defendant
  • Proof of service delivery
  • Notice for payment

[/list3]

Existing entity

The above four points are essential for a successful ship arrest in Bulgaria. These evidence are necessary to convince the court that there are two parties, which exist in their respective jurisdiction. The court can't initiate a case against non-existing entity. Therefore it's essential to have those documents beforehand. An apostille on those documents is required unless, the parties' place of registration is a country, which have signed bilateral agreement for legal aid with Bulgaria.

Proof of service delivery

Arresting a ship is available as a security for maritime claims. An exhaustive list of the types of maritime claims can be found in Geneva Convention on ship arrest from 1999 [original text], on which Bulgaria is signatory. Whether it will be bunkering or other ship maintenance services, there need to be a proof a service delivery when you apply for ship arrest court order.

Notice for payment

Normally after rendering the service, the claimant should have issued an invoice to the bareboat charterer or to the shipowner. Every invoice should have a term for payment, after expiry of which, the invoice is overdue. However if there is no date, a notice for out-of-court payment should be made. In such situations, email correspondence is the normal way of delivering such notices.

Initiating the ship arrest

We, at MH Legal, can initiate the ship arrest the same day, the documents are provided to us by email. After submission, the judge can issue the  ship arrest order in one day, unless a deposit or additional clarifications are required. Should you have a ship arrest request, please contact us on +359 52 605997 or email us on milen@mhlegal.eu

Specifics on ship arrest in Bulgaria (Varna and Bourgas)

ship arrest in BulgariaАrresting a ship is a way to secure a maritime claim, while the claimant initiates the claim proceedings. We have described the procedures for ship arrest in Bulgaria before, but here we will clarify some prerequisites, necessary for the ship arrest. At MH Legal, we advise any claimant who will initiate a ship arrest to prepare the following minimal set of documents:

[list3]

  • Proof of registration for the claimant
  • Proof of registration of the defendant
  • Proof of service delivery
  • Notice for payment

[/list3]

Existing entity

The above four points are essential for a successful ship arrest in Bulgaria. These evidence are necessary to convince the court that there are two parties, which exist in their respective jurisdiction. The court can't initiate a case against non-existing entity. Therefore it's essential to have those documents beforehand. An apostille on those documents is required unless, the parties' place of registration is a country, which have signed bilateral agreement for legal aid with Bulgaria.

Proof of service delivery

Arresting a ship is available as a security for maritime claims. An exhaustive list of the types of maritime claims can be found in Geneva Convention on ship arrest from 1999 [original text], on which Bulgaria is signatory. Whether it will be bunkering or other ship maintenance services, there need to be a proof a service delivery when you apply for ship arrest court order.

Notice for payment

Normally after rendering the service, the claimant should have issued an invoice to the bareboat charterer or to the shipowner. Every invoice should have a term for payment, after expiry of which, the invoice is overdue. However if there is no date, a notice for out-of-court payment should be made. In such situations, email correspondence is the normal way of delivering such notices.

Initiating the ship arrest

We, at MH Legal, can initiate the ship arrest the same day, the documents are provided to us by email. After submission, the judge can issue the  ship arrest order in one day, unless a deposit or additional clarifications are required. Should you have a ship arrest request, please contact us on +359 52 605997 or email us on milen@mhlegal.eu

EU operator's licence from Bulgaria: 2015 updates

operators licence bulgaria 2015 rulesAs transport lawyers, we've been watching very closely the updates in the Bulgarian and European road transport legislation and the operator's licence regime in particular. The trend in all EU countries is governments to put more pressure on international hauliers, in order to protect the local ones. Luckily, European legislation is not that easy to go around. This means that you will continue to benefit of being holder of Bulgarian Operator's licence for transport of goods for hire and reward. We are happy to announce that we continue to provide operator's licence services in compliance with the new changes in the law.

Operator's licence requirements in 2015

In July 2014 the Bulgarian parliament adopted a change to the Road Transport Act, where they impose more stricter measures against 'renting' truck authorisations. Apparently there has been a pressure from Western Countries, who complained that a lot of hauliers who don't fulfil EU O licence requirements, use truck authorisations from other companies.

The government measures include thorough checks by Transport Agency inspectors whether the hauliers fulfill the requirements of Article 3 of Regulation EC/1071/2009 , where a haulier should:

[blockquote]

(a) have an effective and stable establishment in a Member State; (b) be of good repute; (c) have appropriate financial standing; and (d) have the requisite professional competence.

[/blockquote]

The requirement in letter (a) is the one, which the inspectors are particularly after. There have been a lot of Belgian and Dutch companies, who got O licence from Bulgaria, but they were either ill advised by general practice lawyers or even worse - they got the O licence with the help of non-professional. This was relatively easy to be done 3 years ago, but the Transport Ministry tightened the rules, especially with the last legislation amendment from July 2014.

Effective and stable establishment of an haulier in Bulgaria

So what does it mean? In summary this means that during any preliminary and interim check by Transport Agency inspector, your company need to provide satisfactory information that it is properly established in Bulgaria. The company needs to have all legally required facilities, such as operating centre etc. The company needs to have a proper office with all the company and operations paperwork available in this office anytime. Last but not least - the vehicles need to be registered in Bulgaria and either owned or rented/leased from another Bulgarian company. The abovementioned Belgian and Dutch companies were all having Belgian and Dutch registered vehicles under the Bulgarian licence, so they will have their licences revoked unless they register the trucks in Bulgaria and satisfy the establishment requirement.

Number of issued authorisations should match the number of the operated Bulgarian vehicles

This is the second big amendment which was adopted in the Road Transport Act last summer. Тhe Road Transport Agency now has a vehicle register, where they record the number of authorisation issued and matches this number against the vehicles every operator's licence holder operates. The practical issue here is that you can't apply for extra authorisations, unless you show that you own/rent/lease a Bulgarian registered vehicle, which is not used by another company/person.  The Agency checks in their register every time you apply for extra truck authorisation.

Easy Operator's licence solution from MH Legal

Because we watch closely the legislation updates, we are prepared with solutions to every legislation problem. We provide to all our existing and future clients a no-hassle-business-model, where you concentrate on your haulage business whereas we do all the legal compliance work for you. We have helped many UK and Irish hauliers to establish transport companies in Bulgaria so they not only save money but also have become more competitive on the European haulage services market. Call us or email us for to get your Operators licence from Bulgaria now.

Ship arrest in Bulgaria: Varna and Burgas Black Sea ports

Ship arrest in Varna and Burgas black sea portsThe ship arrest procedure in Bulgaria can be done in one of the two Bulgarian Black Sea ports - Varna and Burgas. The legal regime of the ship arrest is subject to the regulation of two main legal acts, effective in Bulgaria:

[list2]

[/list2]

Executing a commercial ship arrest in a Bulgarian sea port

Pursuant to the International convention, the ship arrest in Bulgarian sea port can be executed against a commercial ship only, regardless the flag under which it is registered under. A ship arrest cannot be executed against a government owned ship or non-commercial ship. 

The ship arrest procedure can be done both as a preliminary security for a non-filed maritime claim or as a security measure for entered into force court decision. The latter case has its specifics, relating to whether Bulgaria has bilateral treaty for mutual recognition of legal acts. Each case should be assessed separately.

With regard to the first case, mentioned above, the ship arrest can be executed as a lien or injunction, which will secure the maritime claim against the ship owner or any third party who operates the ship.

Legal grounds for ship arrest

The legal grounds for execution of ship arrest in Bulgaria are listed in Article 1, point 1 of the Ship Arrest convention 1999. These are all possible maritime claims, stipulated and defined by the convention. The most common would be claims for goods, materials, provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance; claims for construction, reconstruction, repair, converting or equipping of the ship; claims for port, canal, dock, harbour and other waterway dues and charges etc.

Starting the procedure for ship arrest

The ship arrest procedure starts with an application to the local District Court, where the ship is currently located. For Bulgaria these are Varna District Court and Burgas District Court. The application should be legally grounded and should enclose all the documents, proving that the ship arrest will be justified. Sometimes the District judge will require a payment of refundable deposit, which will be returned upon successful maritime claim.

The ship arrest court order will be issued within 3 days as of application submission. The execution of the ship arrest order is done by the captain of the port, where the ship is located.

Filing the maritime claim

The ship arrest is just security for the maritime claim. Following the common rules of the Civil Proceedings Code, the judge will give the claimant 30 days after the ship arrest order is issued, to file its maritime claim. The Merchant Shipping Code allows the Bulgarian court to hear any maritime claims for which a ship arrest order has been issued. In case there is an arbitration clause between the parties, the court is bound to it and the case can be heard in the agreed arbitration jurisdiction.

As a qualified transport lawyers and members of Sofia Bar, we do provide representation before Bulgarian courts, including application for ship arrest and legal defense against ship arrests. Contact us to get a quote for your case.

Ship arrest in Bulgaria: Varna and Burgas Black Sea ports

Ship arrest in Varna and Burgas black sea portsThe ship arrest procedure in Bulgaria can be done in one of the two Bulgarian Black Sea ports - Varna and Burgas. The legal regime of the ship arrest is subject to the regulation of two main legal acts, effective in Bulgaria:

[list2]

[/list2]

Executing a commercial ship arrest in a Bulgarian sea port

Pursuant to the International convention, the ship arrest in Bulgarian sea port can be executed against a commercial ship only, regardless the flag under which it is registered under. A ship arrest cannot be executed against a government owned ship or non-commercial ship. 

The ship arrest procedure can be done both as a preliminary security for a non-filed maritime claim or as a security measure for entered into force court decision. The latter case has its specifics, relating to whether Bulgaria has bilateral treaty for mutual recognition of legal acts. Each case should be assessed separately.

With regard to the first case, mentioned above, the ship arrest can be executed as a lien or injunction, which will secure the maritime claim against the ship owner or any third party who operates the ship.

Legal grounds for ship arrest

The legal grounds for execution of ship arrest in Bulgaria are listed in Article 1, point 1 of the Ship Arrest convention 1999. These are all possible maritime claims, stipulated and defined by the convention. The most common would be claims for goods, materials, provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance; claims for construction, reconstruction, repair, converting or equipping of the ship; claims for port, canal, dock, harbour and other waterway dues and charges etc.

Starting the procedure for ship arrest

The ship arrest procedure starts with an application to the local District Court, where the ship is currently located. For Bulgaria these are Varna District Court and Burgas District Court. The application should be legally grounded and should enclose all the documents, proving that the ship arrest will be justified. Sometimes the District judge will require a payment of refundable deposit, which will be returned upon successful maritime claim.

The ship arrest court order will be issued within 3 days as of application submission. The execution of the ship arrest order is done by the captain of the port, where the ship is located.

Filing the maritime claim

The ship arrest is just security for the maritime claim. Following the common rules of the Civil Proceedings Code, the judge will give the claimant 30 days after the ship arrest order is issued, to file its maritime claim. The Merchant Shipping Code allows the Bulgarian court to hear any maritime claims for which a ship arrest order has been issued. In case there is an arbitration clause between the parties, the court is bound to it and the case can be heard in the agreed arbitration jurisdiction.

As a qualified transport lawyers and members of Sofia Bar, we do provide representation before Bulgarian courts, including application for ship arrest and legal defense against ship arrests. Contact us to get a quote for your case.

The biggest mistake when dissolving Bulgarian company

dissolve-bulgarian-companyThere are two main reasons why foreigners dissolve their Bulgarian limited companies: [list2]
  • They failed to re-register by end of 2012 OR
  • They want their property on their personal names

[/list2] Regarding the first point, we have alarmed in the past few years that all companies in Bulgaria which haven't been re-registered or dissolved voluntarily, will be subject to compulsory liquidation by the government. According to §5а paragraph 1 of Companies Register Act, the deadline for voluntary dissolving of the non-reregistered companies is set to 31 January 2015, which is just 6 months away. Regarding the second point, people realised the benefit of having the real estate property on their own name and decided to dissolve their holding company. In order to do this, they hired a solicitor or an accountant to conduct the liquidation procedure.

Liquidation has started but is it being done professionally?

Many Brits and Irish who own their properties through limited companies have already started their liquidations, so that they keep their properties. Even if they have not been forced to dissolve their companies, it is still better to do it because of various reasons such as lower annual expenses, better inheritance procedures and security, tax efficiency etc. In this short article I will bring your attention to just one of possible pitfall which you might face if you hire 'just any' accountant or solicitor in Bulgaria to dissolve your company. The trouble is that not many accountants and solicitors specialise in company dissolution and, let me tell you, it's not a straight forward procedure as one might think.

Taxes, taxes..

The purpose of the liquidation, because of which one will bother dissolving his company, will be transfer of the existing real estate property to shareholder's name. However, the normal goal of the company dissolution is to cash any existing assets of the company, to pay all creditors and to return whatever has been left to the company shareholders. As you can see, the liquidator needs to undertake some legal actions of dispossession. They of course lead to creating some tax obligations, both for the company being dissolved and to the shareholders who accept the ownership of the property or the cash, left after selling it to a third party. The liquidator is obliged to notify the Bulgarian National Revenue Agency and National Social Security Institute (in case the company traded and had employed people) which brings the attention of those two authorities to the company dissolution procedures and the possible taxes/fines it owes to the government or to the local town council. The way the liquidator manages and plans the property transfer process is crucial to the tax obligation which would follow after the company is dissolved.

How about HMRC/Irish Revenue and Customs?

Even if you think HMRC doesn't talk to NRA, you might be wrong. There are many cases of cooperation between those two authorities and not only in the VAT filed. When it gets to collecting tax, HMRC knows how to chase people and check their overseas assets. Therefore it is essential to have the liquidator on your side and plan your money/property transactions carefully so that no additional tax will be paid. After all it's your property, why you should pay income tax on it? We at MH Legal understand the importance of international tax planning that's why we provide professional company liquidation services to our British and Irish clients.