Bulgaria

BREAKING: Coronavirus (COVID-19) considerations for directors

1. What are the key issues for directors during the COVID-19 crisis?

The main challenges that directors face during the COVID-19 crisis are related to ensuring normal cash flow and the liquidity of companies.

Although there are few explicit prohibitions, business is certainly affected by the measures taken against the epidemic by the authorities responsible. The measures with the most significant effect are: the prohibition of mass gatherings, the restrictions imposed on travel and the 14-day obligatory quarantine for all individuals entering Bulgaria.  

Depending on the nature of a company’s obligations, the measures taken against the epidemic may cause interruptions in the performance of certain contracts. This may well be the case with contracts requiring the gathering of many people in one place, having a foreign expert on site in the country, or the delivery of certain materials which may not be available due to the imposition of travel restrictions.

2. What government relief measures have been made available to directors?

The Parliament and Council of Ministers have adopted a set of measures for overcoming the impact of COVID-19 on business. These measures affect various aspects of life and are supplemented by the orders of the Minister of Health who can impose any measures, effectively restricting the right of movement, suspending or limiting the operation of certain public developments or sites, or the temporary suspension of any service provided to citizens.

The Emergency Measures Act

On 23 March the Parliament adopted the Measures and Actions during the State of Emergency Announced with a Decision of the Parliament on 13 March 2020 Act (“Emergency Measures Act”). The Emergency Measures Act provides that:

  • depending on the nature and specifics of the work, where possible employers can introduce working from home or remote working, even without the consent of the employee. Part-time work may also be introduced temporarily during the state of emergency. When on site work continues, directors must ensure strict adherence to the hygiene rules and measures for compliance with the special order issued by the Minister of Labour and Social Policy
  • operation of the business may be suspended partially, entirely or for certain employees during the state of emergency (announced until 13 May 2020, although it may be prolonged further). Some businesses have been temporarily closed under the order of the Minister of Health (cafés, bars, etc.). Such measures may be applied by directors of companies which have not been affected by the orders of the authorities responsible
  • directors have the opportunity to grant employees half of their paid annual leave without their consent. When operation of the business is suspended, directors may grant paid annual leave regardless of whether employees are eligible for holiday entitlement (i.e. whether they have been with the company for 8 months or not). In addition, employers must approve the holiday requests of certain groups of employees (e.g. mothers or single fathers of children below 12 years or of disabled children; pregnant and disabled employees).

The Emergency Measures Act also provides for suspension of certain terms provided for in legislation that may affect business. In addition, the emergency legislation extends deadlines for submitting tax returns and accounting reports as follows:

  • the standard deadlines for 2019 annual reporting on corporate income tax, expenses tax, gambling tax and merchant vessel operation tax are extended from 31 March 2020 to 30 June 2020. The payment terms of taxes due have been extended accordlingly
  • the deadline for filing companies’ annual financial statements is also extended until 30 September 2020.

More information about the emergency legislation and its impact on business may be found in our law-now articles: Bulgaria: state of emergency legislation published today, Bulgarian Government adopts wage subsidies to support business during crisis, Bulgaria introduces emergency tax measures during COVID-19 crisis, and Bulgaria issues new guidance on public procurement during the state of emergency.

State aid

The Council of Ministers adopted Decree No. 55/2020 which introduces compensation for eligible employers that have been affected by emergency measures. The industries entitled to compensation are limited and explicitly listed in the decree (mainly in the food, hotel and leisure, culture and entertainment sectors). Compensation is in the amount of 60% of the socially-insured income of the respective employee for January 2020, plus the social insurance payments due on behalf of employers. This support will be provided for no more than 3 months during the state of emergency, and employers that benefit from it shall not dismiss the respective employees for the period of time equal to the period during which they have been granted compensation.

Moratorium on bank loan payments approved by the Bulgarian National Bank

The Bulgarian National Bank approved a moratorium on bank loan payments on 10 April 2020 as part of the measures for overcoming the impact of COVID-19. The moratorium is applicable to all persons and legal entities (except credit institutions) which must apply to their bank in order to benefit from the moratorium and meet the following minimal requirements:

  • persons and legal entities should have, or expect to experience, difficulties in servicing their liabilities stemming from the COVID-19 outbreak
  • clients should have serviced their debts regularly prior to 1 March 2020 or have been in arrears no longer than 90 days as of the application date.

The moratorium provides bank customers who apply with the option to amend the repayment schedule of principal and/or interest under their exposure without the option to alter any other features of the financing agreement (including interest rate). The option to delay the payment of interest and/or principal shall not be longer than 6 months and shall not extend beyond 31 December 2020.

Additionally, the Emergency Measures Act provides that borrowers would be exempt from the adverse consequences of payment delays under loans provided by banks and financial institutions such as default interest and penalties, or a creditor’s rights to accelerate or terminate a loan.

Further, there is information that the Bulgarian Development Bank will provide loans free of interest to companies affected by COVID-19. It is expected that the requirements for application for such a loan will be made known soon.

For more details on the moratorium, please refer to our law-now article: The Bulgarian National Bank approves sector-wide voluntary moratorium.

3. What changes have been made to directors’ duties as a consequence of the COVID-19 crisis?

The duties of directors generally remain the same, as described in the guide, as no explicit new duties have been imposed by the emergency legislation. However, some new matters will have to be considered by directors.

When working from home is possible and feasible, directors will have to consider preparing a working from home policy if one has not been introduced already. They will also have to issue the respective orders for introducing working from home during the respective term.

If the work of the company or of certain employees has been suspended, directors shall ensure that the respective employees are not admitted to the company’s premises during the term of suspension.

In addition, directors shall ensure that all health and safety measures are observed and give necessary instructions to employees. When working from home has not been introduced, directors shall ensure that employees observe social distancing and provide them with the necessary personal protection tools (such as masks, gloves, etc.).

Directors duties and responsibilities

1. What form does the board of directors take?

Joint Stock Company (JSC)

A JSC is managed by the executive members of the board of directors in a one-tier system, or by the members of the management board in a two-tier system.

Limited Liability Company (LLC)

The management bodies of an LLC are: (i) the general meeting of the quotaholders and (ii) the manager(s). Often the quotaholders are closely involved in the management of an LLC.

2. What is the role of non-executive or supervisory directors?

Management board members (in JSCs) and managers (in LLCs) have equal rights and obligations, regardless of any internal allocation of responsibilities or management and representation powers amongst them. They perform their functions with the highest professional care and in the interests of the company and of all shareholders.

3. Who can be appointed as a director? 

Joint Stock Company

A board member can be an individual or a legal entity, where the articles of association of the company so provide. Where the board member is a legal entity it must designate a representative for the performance of its duties on the board of the JSC. However, Bulgarian law stipulates that a person may not be a director if he or she:

  • has been a board member of a company which has been dissolved on the grounds of insolvency within the 2 years preceding the date of his/her appointment and the claims of its creditors were not fully satisfied
  • has been a manager or a board member of a company which has breached its obligations in respect of reaching and maintaining set levels of stocks under the Oil and Oil Products Stocks Act, or
  • does not meet other requirements provided for in the articles of association of the company.  

Limited Liability Company

The manager of an LLC does not necessarily have to be a quotaholder but must be an individual rather than a legal entity. An LLC may have more than one manager who can represent the company jointly or severally, depending on the provisions of the company’s articles of association. The same restrictions as those for board members of a JSC apply to the managers of an LLC.

4. How is a director appointed?

Joint Stock Company

The members of the board of directors (one-tier system) or of the supervisory board (two-tier system) are elected and removed from office by the general meeting of shareholders.
The general meeting also determines the remuneration of the supervisory board members, including their right to receive part of the company’s profits or to acquire shares and debentures of the company.

Board members are elected for a term of office not exceeding 5 years. However, the term of office for the members of the first board upon incorporation of the company cannot be longer than 3 years. Board members may be re-elected without limitation. The general meeting of shareholders can remove board members from office at any time.

Two-tier system

  • The company is managed by a management board which is controlled by the supervisory board. Members of the management board are appointed by the supervisory board, which also determines their remuneration and may remove them from office at any time. One person cannot serve on both the management board and the supervisory board simultaneously.
  • The number of members of the management board ranges between three and nine and is determined by the articles of association. The rules of procedure for the management board are approved by the supervisory board.
  • The supervisory board may not take part in the management of the company. The supervisory board represents the company only in its relationship with the management board. Members of the supervisory board are appointed by the general meeting of shareholders. There may be between three and seven members.
  • The supervisory board adopts its own rules of procedure and appoints a chairperson and vice¬-chairperson from among its members. The supervisory board meets regularly and at least quarterly. The chairperson calls meetings of the supervisory board on his/her own initiative, as well as upon requests of members of the supervisory board or members of the management board.

One-tier system

  • The company is managed and represented by a board of directors, consisting of a minimum of three and a maximum of nine directors. The board of directors adopts its own rules of procedure and elects a chairperson and vice-chairperson from among its members. The board of directors meets at least on a quarterly basis to discuss the company’s state of affairs and prospects for development. The board of directors assigns management of the company to executive members, elected from among its numbers, and determines their remuneration. The number of executive members must be lower than the number of the remaining (non-executive) board members. Each executive board member must immediately inform the chairperson of the board of directors of any circumstances which are material to the company. Each board member may request that the chairperson call a meeting to discuss particular matters.
  • A person nominated as a board member must, prior to his/her election, give notice to the general meeting of shareholders (or the supervisory board, if a member of the management board) of: (i) his/her participation in any companies as an unlimited partner, (ii) his/her holding of over 25% of the equity in any other company, and (iii) his/her participation in the management of other companies or co-operatives as a procurator, manager or board member. If a serving board member acquires or is appointed to any of the above, he/she must issue a written notice of the acquisition or appointment to the shareholders or to the supervisory board.

Limited Liability Company

The manager is appointed by the general meeting of the quotaholders of the company, which also determines the manager’s remuneration and may release him or her from liability.
Board members of JSCs and managers of LLCs must be registered in the Commercial Register of the Bulgarian Registry Agency (the “Commercial Register”) by filing a notarised consent and a statement certifying that there are no obstacles to occupy the respective position.

5. How is a director removed from office?

Joint Stock Company

A board member may be removed from office at any time by the general meeting of shareholders or by the supervisory board. A board member may request his/her removal from office by serving a written notice addressed to the company. The company must apply for de-registration of the board member from the Commercial Register within 6 months of the receipt of such notice. If the company fails to do so, the board member may notify the Commercial Register directly and personally file the notice for the removal from office. The board member will then be de-registered from the Commercial Register regardless of whether another person has been elected to replace him/her on the board.

Limited Liability Company

The manager may be removed from office by the general meeting of quotaholders at any time. The manager may request his/her removal by serving a written notice addressed to the company. The company must apply for the registration of the discharge with the Commercial Register within 1 month of receiving such notice. If the company fails to do so, the manager may notify the Commercial Register directly and personally file the notice for the removal from office. The manager will then be de-registered from the Commercial Register regardless of whether another person has been elected to replace him/her as manager.

The removal from office has effect in relation to third parties acting on good faith as of registration at the Commercial Register.

6. What authority does a director have to represent the company?

Joint Stock Company

The members of the board of directors or the management board represent the company collectively, unless otherwise provided by the articles of association. The board of directors or the management board (subject to approval by the supervisory board) may delegate the authority to represent the company to one or more of its members. Authority so delegated may be revoked at any time.
The names and specimen signatures of the authorised representatives of the company are registered in the Commercial Register.

A company’s articles of association may provide that certain transactions can be entered into only with the prior approval of the supervisory board, or upon the unanimous decision of the board of directors. Such restrictions may also be imposed by the supervisory board or the board of directors. By law, the following transactions require a resolution of the shareholders at a general meeting:

  • transfer or right to use the entire business
  • disposal of assets (the total value of which for the current year exceeds half of the value of the total assets of the company as per its latest audited annual financial statements)
  • assumption of liabilities or the provision of collateral to one person or to related parties, the amount of which in the current year exceeds half of the value of assets of the company as per its latest audited annual financial statements.

The company’s articles of association may expressly provide that the above transactions will be within the powers of the board of directors or the management board, in which case a unanimous resolution of the board of directors or consent from the supervisory board given in advance will be required.
Any transaction concluded in breach of those requirements will be valid with respect to third parties, but the person who concluded it on behalf of the company will be liable for any damages incurred by the company.

Limited Liability Company

The manager organises and directs the activities of the company in accordance with the resolutions of the general meeting of quotaholders. Without the consent of the company, the manager may not: (i) effect commercial transactions which are similar to those of the company on his/her own behalf or on a third party’s behalf; (ii) participate in partnerships, partnerships limited by shares, or in limited liability companies; or (iii) hold management positions in other companies. The manager is required to indemnify the company for any damage caused to the company from a breach of his/her obligations.

7. How does the board operate in practice?

Joint Stock Company

The executive members of the board of directors, or the members of the managing board, jointly manage the company’s operations. The shareholders may modify this requirement and allocate certain tasks to one or more board members. Furthermore, the board’s internal rules of procedure may provide for a more specific allocation of the tasks between the board members. Nevertheless, such distribution of responsibilities cannot override the joint responsibility of the board members for the operations of the company.

Limited Liability Company

Even if an LLC has more than one manager, the managers of the company do not constitute a collective body. Rather, each of them is responsible for the management of the company’s operations. The articles of association determine whether the managers can represent the company severally or jointly.

8. What contractual relationship does the director have with the company?

Joint Stock Company

Two-tier system

  • The relationship between the company and the members of the management board is governed by a management agreement. The agreement is executed in writing on behalf of the company by the chairperson of the supervisory board or another board member authorised by the chairperson.
  • The relationship between the company and the members of the supervisory board is governed by a services agreement. The agreement is executed on behalf of the company by a person authorised by the general meeting of the shareholders or by the sole owner.

One-tier system

  • The relationship between the company and the executive members of the board of directors is governed by a management agreement. The agreement is executed in writing on behalf of the company by the chairperson of the board of directors.
  • The relationship between the company and the non-executive members of the board is governed by a services agreement executed on behalf of the company through a person authorised by the general meeting of shareholders or by the sole owner.

Limited Liability Company

The relations between the company and the manager are governed by a management agreement. The agreement is executed in writing on behalf of the company by a person authorised by the general meeting of quotaholders or by the sole owner.

9. What rules apply in respect of conflicts of interest?

Unless the company consents, a board member or a manager in a JSC or LLC may not: (i) enter into commercial transactions on his/her own behalf or on a third party’s behalf; (ii) participate in partnerships and partnerships limited by shares or in limited liability companies; or (iii) hold managing positions in other companies when the activities carried out are similar to those of the company.

10. What other general duties does a director have?

Members of a board of directors and the management board may not, whether on their own behalf or on behalf of others, execute business transactions or serve as procurators, managers or board members of other companies or co-operatives, if these compete with the company. This restriction does not apply where the articles of association expressly allow such competing activities or where the body which elects the board member has given its express consent.

Board members may not disclose any confidential information which has come to their knowledge in relation to the performance of their duties if such disclosure could affect the activities or the interest of the company. The confidentiality obligation survives the board member’s removal or resignation from office.

Further, board members and managers are responsible for the performance of certain obligations, set out in the Anti-Money Laundering Measures Act (the “AMLMA”). For instance, the AMLMA requires local companies to provide the Bulgarian Commercial Register with information and documents evidencing the identity of their ultimate beneficial owner(s) (UBO) and details regarding the legal entities/formations, through which the UBO(s) exercise direct or indirect control over the company.

Board members and managers must declare (and update, in case of changes) these circumstances before the Commercial Register. Further key responsibilities under the AMLMA include:

  • adoption of internal risk assessment procedures and company rules for the prevention of money laundering and terrorism financing
  • supervision and control of the performance of internal company rules
  • organising introductory and ongoing company training for compliance with the AMLMA and other related legislation
  • ensuring the collection and safekeeping of AMLMA-related documentation/information
  • providing AMLMA-related information and documentation to state authorities upon request.   

The performance of such duties can be of crucial importance to the company’s business, as the AMLMA envisages various sanctions for non-compliance. Depending on the offence, a company may be subjected to fines ranging from EUR 2,500 up to EUR 5,000,000 or in the amount of 10% of the annual turnover. If state authorities provide deadlines for the performance of specific obligations and a company fails to meet them, the respective penalty is applied for every month of non-compliance. Moreover, companies that operate in accordance with a registration regime or under a licence/permit, which commit a second offence or a serious breach of obligations, may be deleted from the respective register or may have their respective licence/permit revoked.

11. To whom does the director owe duties?

Company directors and managers owe their duties to the respective company.

12. How do the director’s duties change if the company is in financial difficulties?

Specific obligations for managers and board members arise where the company becomes insolvent. The manager or the executive director of the relevant company must file for insolvency within 30 days. If the manager/executive director fails to fulfil this obligation, he/she will be liable towards the creditors for the damages incurred. In addition, the defaulting manager/executive director may be subject to criminal liability.

The manager of an LLC must schedule a general meeting of the shareholders immediately if the losses of the company are more than one quarter of the capital of the company and the value of the LLC’s assets falls below the value of the LLC’s registered capital.

13. What potential liabilities can a director incur?

The directors are jointly and severally liable to the company for any damage caused as a result of their actions. Any director may be released from liability if it is established that he/she has no fault for the damage suffered by the company. Shareholders holding at least 10% of the company’s equity may file a claim demanding that board members be held liable for damage caused to the company.
Board members of JSCs must notify the board of directors in writing when they or parties related to them enter into agreements with the company out of the ordinary scope of activities of the company or outside normal market conditions. Such agreements may only be executed following the approval of the transaction by the board of directors. However, if executed without the board’s approval, such a transaction is valid but the person who has knowingly executed it is liable for damages to the company. Much stricter rules concerning related party transactions apply to public companies. A member of a management board or board of directors or a manager may be liable for the amount of uncollected taxes due from the company if such member or manager conceals facts and circumstances which under law he/she is obliged to reveal to the relevant revenue body and as a result the outstanding taxes or social security liabilities cannot be collected.

A member of the management board or a manager who: (i) unscrupulously disposes of assets of the company or makes cash payments which constitute hidden profit distribution or payment of dividends; or (ii) disposes of assets of the company without remuneration or for a price much lower than the market value, which results in a decrease of the company’s assets and inability to pay taxes and social securities, is liable up to the amount of the relevant payment or up to the amount of the decreased value of the assets.

The liability of a legal entity, acting as a board member, arising from the actions of its representative on the board is unlimited and is joint and several with the other board members.

Further, members of the management board or managers are personally liable for any breach of their obligations under the AMLMA, which may result in penalties ranging from EUR 500 to EUR 25,000 (depending on the offence). If state authorities provide specific deadlines which are not met by the board members or managers, the respective penalties are applied on a monthly basis until the respective obligations are performed. Also, in cases of serious or systematic breach of obligations, management board members or managers may temporarily be forbidden to occupy high managerial positions (3 months or 1 year, depending on the offence).

14. How can a director limit his or her liability?

Management contracts between the company and the respective director/manager can set out limitations to the liability incurred by the respective director/manager, including specific indemnities for third party liabilities.

In addition to the above, the company also has the option to purchase directors’ and officers’ insurance with the company itself as a beneficiary.

Finally, the general meeting of shareholders may release the board members of the JSC from liability. In the case of LLCs, the manager is released from liability by the general meeting of quotaholders. Normally, such releases from liability are made yearly at the time of approval of the annual financial statements and the annual management report by the general meeting.

Picture of Atanas Bangachev
Atanas Bangachev
Partner
Sofia
Picture of Gentscho Pavlov
Gentscho Pavlov
Partner
Sofia