by Daniela Bobeva and CSD Team
INTRODUCTION
The political changes in Bulgaria gave the
private initiative the opportunity to expand. As a result of this,
in the economy occurred different changes in the property
structure:
1. The property boundaries became unclear
because of the dynamic processes of restructuring and the fact that
the state gives up its ownership rights slowly.
2. The spontaneous redistribution of the
state capital turned out to be inevitable under the radical changes
in the economic practice. The difficulties in carrying out this
process stem from the fact that the historical experience has been
a little bit forgotten. Also forgotten are the traditions in
executing the private property rights.
3. The diffusion of state and private capital
under unclear economic rules is natural, though politically and
socially painful. This process causes distortions in the flow of
finances, price formation and added value distribution.
4. The decapitalizing of the state sector is
a logical form of redistribution of the country's wealth, given the
lack of strict control in the state institutions and the unstable
political situation. This is being carried out by transferring
assets or liquidating liabilities and changing the actual incomes
through uneven price rises.
The rise of a private sector out of a
centrally planned economy is a historical phenomenon, the study of
which is important not only from the point of view of economic
history but also to form an adequate policy for developing a
transitional economy that has no historical analogue. The more
distorted the picture of the changes in the economy, including the
private sector, the more difficult to form an adequate transition
policy.
The current study aims at presenting the
general tendencies in the development of the Bulgarian private
sector shortly before the reforms and during the so called
"transition to a market economy" in order to substantiate some
basic recommendations regarding the policy in this area. The study
makes use of all possible sources of information: National
Statistical Institute's monthly data, current statistical surveys,
representative studies of the private sector, balance sheets and
P&L statements of state and private companies, sociological
studies, the Business register of Bulgaria, documents and articles
in the mass media, as well as CSD own research. The tables and
indicators are based on the information about more than 361 000
registered private firms.
. The contradictory and imperfect character
of the information sources becomes a serious obstacle to obtaining
a comprehensive view of the private sector in Bulgaria. It is no
chance that the different sources give different assessment of the
sector's role and share in the GDP, its volume of production and
employment. Nevertheless, the current study attempts to expand the
existing data and draw closer to the real state of matters.
The first problem arising in studying the
"private sector" is the lack of a definition of what forms of
business activity are included in the term. Until 1991, it did not
even existed in the legal and statistical practices.
According to the established definitions in
the developed market economies the term "private sector" includes
any form of business activity except those carried out by state and
public corporations.
Ammer defines the private sector as including
all business activities which are independent of the state control,
and outside the so called public sector, and carried out to make
profit, as well as non-profit organizations, satisfying personal
needs, such as private hospitals, private schools, etc.
In the macroeconomics literature the
distinction between the private and non-private sectors is related
to determining the role of the non-profit organizations and the
private institutions with humanitarian purposes. The private sector
comprises companies of both individual and group ownership. Unlike
the definitions of the International Labor Organization, where
self-employment is regarded as a separate sector, the macroeconomic
theory includes it in the private sector. According to Bannock the
private sector includes the individual and corporate sectors. This
definition is relevant to the emerging private sector in Bulgaria,
which consists mostly of small individual owners (mainly sole
proprietorships) and commercial partnerships with or without
limited liability, which form the corporate sector.
The current analysis will regard the private
sector as that part of the economy which is owned and managed by
private companies, in which private persons participate with a
majority and control the decision-making process.
The private sector is related to the
ownership rights that can be executed in a country but outside the
prerogatives of the state.
The report is intended above all for public
officials and policy-makers concerned with the private sector. It
includes detailed information about the efficiency of the private
sector, the segmentation of the markets, the possible sources of
finance and aid of the sector, and this could boost the expansion
of the private business. The financial assessments could be of
interest to the financial institutions.
The study has been prepared by the Economic
Program with the Center for the Study of Democracy, with the
contribution of Valentin Georgiev (Chapter I, 1) and Krasimir
Tsigularov (Chapter IV). The authors would like to thank Milcho
Mladenov, Head of the Economic Statistics Department with the
National Statistical Institute, for the cooperation and
consultations.
CHAPTER ONE:
EMERGENCE AND DEVELOPMENT OF THE PRIVATE SECTOR
1. Legal and institutional
framework of the private sector
After its Liberation in 1878, Bulgaria
proceeded to build up a legal system which was to lay the
foundations of a democratic society, with private enterprise being
the chief driving force of the economy.
Following the socialist revolution in 1944,
the legal system and legislation served the purpose of fortifying
the economic framework of socialist society. A number of laws
adopted in the first years of socialism put public property and
socialist planned economy in the foreground. Private property was
rejected and certain laws were passed stipulating the expropriation
of private means of production, the collectivization of farm land,
and finally, the nationalization of personal property of citizens -
housing, and others.
The changes that took place in Bulgaria in
1989 brought about the onset of speedy passing of legislation to
allow the transition from a socialist planned economy to market
economy. There began a process of re-establishment of the pre-1944
democratic legal traditions and adoption of modern legislation
tendencies in the advanced western countries.
The objective of the present paper is to
provide an overview of the legal framework of the private sector by
considering the following aspects:
1. Legal framework of property.
2. Legal status of commercial entities and
their interrelations in the process of carrying out economic
activity.
3. Taxation.
4. Legal framework of foreign investments and
their role for private sector development
5. Legal framework of competition.
Legal framework of property
When considering the property legislation
framework, it is necessary to start by examining the past and
present constitutional norms regulating the carrying out of
economic activity in Bulgaria.
The first Bulgarian constitution - the
Turnovo Constitution, was adopted in 1879. It proclaimed the
country a constitutional monarchy with popular representation and
introduced a number of democratic principles for the creation and
development of parliamentary institutions in the country. Most
significant to the development of market relations was no doubt the
principle of the inviolability of private property upheld by the
Constitution (Art. 67 "Property rights shall be inviolable").
Following the 1944 socialist revolution, the
supreme law of the country became the first socialist Constitution
of 1947. It provided the basis for turning Bulgaria into a country
with one-party government - that of the Communist Party, and a
centralized planned economy. Public property was accorded a central
place and significance, with guarantees for its protection and
development, while private property was relegated to the background
and subject to considerable restrictions. The subsequently adopted
laws limited private property to "personal property", which term
covered real estate for personal use - i.e. housing and country
houses at the most, as well as personal effects - objects of daily
personal use, small-scale farm equipment, and private automobiles.
The nationalization of industrial enterprises, mines and quarries
carried out in 1947, and the subsequent collectivization of farm
land in the 1950s, finalized the transition to a centrally planned
economy, regulated by administrative acts.
The second socialist Constitution adopted in
1971 - the so-called "constitution of mature socialism" -
conclusively established the leading role of the Communist Party in
society and the state, i.e. the dictatorship of the proletariat.
Bulgaria's economic system was defined as a socialist one,
excluding the exploitation of man by man. The state controlled the
national economy on the basis of unified five-year plans for social
and economic development.
The forms of property were defined as
state-owned (public), cooperative, property of public
organizations, and personal property. Art. 15 of the Constitution
defined public property as the highest form of socialist property,
enjoying special protection. It covered industrial plants and
factories, banks, mineral resources, natural energy sources,
nuclear energy, waters, forests, pastures, roads, railway, water
and air transport, posts, telegraphs, telephones, radio and
television. The state exercised its property rights by creating
economic organizations or state-cooperative enterprises which were
to run, maintain and administer the property. Art. 29 of the
Constitution included a provision whereby the state could establish
by law exclusive right to engage in certain types of business
activity, and the second paragraph stipulated that foreign trade
was an exclusive right of the state.
The provision in Art. 19 of the Constitution
defined cooperative property as owned by collectives of workers
united voluntarily for the purpose of carrying out joint business
activity. The cooperatives could only own means of production in
certain cases provided by law. There was more detailed provision
for cooperatives in the Cooperatives Act, defining them as
socioeconomic socialist organizations, and intrinsic part of the
country's socialist economic organization. The fact that it was the
Council of Ministers that exercised general supervision over their
activity confirms the conclusion that cooperatives were not in a
position to compensate for the absence of a private sector in
Bulgaria and in fact constituted a disguised form of state-owned
enterprises.
According to Art. 21 of the Constitution,
citizens were entitled to personal ownership of real estate and
personal effects to meet their own needs as well as the needs of
their families. This category of personal property was also
extended to cover the small-scale means of production and the
agricultural output of cooperative member households and others
cultivating land that had been granted for their personal use or
other supporting activities. In fact, the private sector consisted
in supply of services and retail by private persons on a
contractual basis, or craft practice - supplying services or
production of small wares for mass consumption or folk art and
handicraft articles. In those cases citizens could be granted the
use of workshops or small retail shops or outlets (public
food-and-drink establishments, stalls, kiosks, etc.). This more or
less exhausted the allowed business activities by persons other
than the state-owned enterprises and cooperatives.
The now acting Constitution was adopted in
1991 and is the fundamental law for the development of a democratic
society and market economy in the country. It provides the
necessary legal protection and safeguards for private property and
the economic rights of citizens.
Art. 17, Paragraph 3 of the Constitution
asserts the principle of the inviolability of private property. The
forcible expropriation of property can only be carried out on
account of state and municipal needs and solely on the basis of an
act of parliament provided those needs cannot be met by any other
means and subject to equivalent preliminary compensation.
Another particularly important provision is
that of art. 19, proclaiming free economic initiative as the
fundament of the economy in Bulgaria. The principle has been
established for investments and economic activities of foreign and
Bulgarian citizens and legal persons to be granted protection by
the law. The constitutional norms further guarantee equal legal
conditions for economic activity to all citizens and legal persons,
and provides for protection of consumers. The abuse of monopoly
positions and unfair competition are prohibited by law.
The legal regulation of property rights
issues is central to every economic system. After the Liberation
those matters were provided for in Bulgaria by the Property Act.
The approach of other European countries, where a single civil code
regulates both property and contractual relations, was not adopted
in Bulgaria.
As mentioned above, the first socialist
constitution upheld the dominant role of public property. The
Property Act passed in 1951, while adhering to the fundamental
civil and legal principles regulating property relations, also
introduced a number of principles of a socialist character, which
emphasized public property and placed personal property in a
subordinate position. Public property included all trade and
industrial enterprises and the mineral resources, and its
administration was in fact carried out by the Council of Ministers
by government decrees and regulations. And since, according to the
Constitution, that type of property was not tradable, it was not
subject to the provisions of the Property Act.
The other types of property were the
cooperative and personal property. According to the regulations
contained in the Cooperatives Act and the standard statutes of the
Collective Farms, cooperative property consisted largely of farm
land and other real estate or movable property deposited as a
contribution to share capital by the individual cooperative
members.
Personal property was reduced to the right of
each household to own one flat/house and one country house.
Individual property rights and transactions involving them were
regulated by the Property Act. The Citizen Property Act adopted in
1971 included additional measures of an administrative character
meant to introduce further restrictions on the right of citizens to
own real estate property under the proclaimed, seemingly "noble"
intention of providing possibilities to meet the housing needs of
all citizens. Thus, the Citizen Property Act represented a special
law, and the property related norms set by the supreme law were in
fact derogated.
All of these regulations substituted the
freedom of contracting among legal entities for administrative
measures, including even the possibility to determine the actual
buyer and the selling price. In practice, there existed no genuine
real estate market in the country, which meant that one of the
crucial preconditions for private sector development was actually
missing.
Since 1990 the legal regulation of property
relations in Bulgaria has undergone rapid transformation. The
hierarchy established by the socialist legislation and the
subordinate position of cooperative and personal property with
respect to public property was abolished with the adoption of the
new Constitution. As stressed above, the constitutional provisions
give equal and full protection to all types of property. The
Property Act has been amended and all rudimentary socialist norms
have been repealed. With the repeal of Chapter II of the Property
Act the restrictions on the ownership of real estate by citizens
have been lifted. This created the necessary legal framework for
the regulation of property rights and provided the essential
conditions for the development of a real estate market.
A critical factor for the transition to
market economy and private sector development in Bulgaria is the
withdrawal of state ownership over the enterprises. It is made
possible by the mechanisms of restitution on the one hand, and
through the process of privatization, on the other.
The setting up of joint ventures between
state-owned and private enterprises first became possible with the
adoption of Decree N 56 on Economic Activity and the amendments to
the 1971 Constitution which were passed in 1990. That was actually
the first step in the gradual denationalization of property.
Presently the setting up of joint ventures is
subject to the provisions of the Law on Commerce. However, since
the state-owned enterprises are not free to dispose of their
property, and the Council of Ministers exercises the rights of sole
proprietor of state capital, the creation of joint ventures is also
subject to the Rules and Regulations on the Manner and Procedure of
Exercising State Property Rights in the Enterprises (passed in 1994
by Decree N 7 of the Council of Ministers). To a certain extent
this tends to delay the process, as it is not only the state-owned
enterprises, but likewise the respective state authorities -
ministries and institutions - which are involved in the setting up
of joint ventures with private investors.
On the other hand, with the adoption of the
Law on Local Self-Government and Local Administration, the
municipalities have been allowed the opportunity to dispose freely
of the municipal property. Municipalities are free to form
partnerships with other commercial entities and to participate in
the carrying out of economic activity through municipal
enterprises. In practice, this has actually placed municipal
property in the market, which also played a favorable role for
private sector development.
The legislation related to the restitution of
property proved to be of great importance to private sector
development.
In this respect, the foremost act in terms of
the implications for the entire economy has been the restoration of
property rights in farm land. In the time of socialism, this land,
which used to be privately owned until 1950 and in the subsequent
collectivization came to be part of the property of the Collective
Farms, had been subject to regulations which completely destroyed
private initiative and entrepreneurship. Ultimately that also
brought about the ruin of agriculture in this country. With the
adoption of the Law on the Ownership and Use of Farm Land, the
property rights of the former owners and their heirs were restored,
thus allowing them the opportunity for independent initiative
concerning the use and cultivation of their land.
The Law on the Restoration of Property Rights
in Nationalized Real Property was the second most significant
restitution law. It is the chief law on the restitution of real
property within the zoning map boundaries of built-up areas and of
the nationalized private industrial, mining, and other
enterprises.
The Law on Restoration of Property Rights in
certain Shops, Workshops and Storehouses was the first restitution
law. It encompassed relatively small-scale objects, but returning
them to their owners has played an important role in encouraging
private initiative and above all, for the development of the retail
trade. It allowed the expansion of the retail outlet network, the
setting up of the first offices of the newly created private
companies, and the initial private accumulation of real estate
capital.
The Law on Restoration in Property Rights in
Some Expropriated Real Property under the Law on Territorial and
Town Zoning, the Law on Planned Development of Built-Up Areas, the
Law on Town Development, the State Property Act and the Property
Act, was aimed at restoring the property rights of owners of
expropriated real property.
The adoption in 1992 of the Law on the
Transformation and Privatization of State-Owned and Municipal
Enterprises (State Gazette 38/05.08.92) created the
possibility for rapid denationalization and transfer of property to
a wide circle of owners. It will limit state participation in the
economy and lead to the emergence of a large number of independent
commercial entities in a position to establish competition as a
fundamental principle in the transition to market economy.
Industrial and intellectual property
rights
In the context of socialist economy the
industrial and intellectual property rights were of limited
importance. The legal framework was outlined by the 1968 Law on
Inventions and Innovations, which only reinforced the socialist
principles and was exclusively oriented towards serving the
interests of the state. Protection was given to the inventions,
whose authors were granted the so-called "authorship certificates"
and a minimal remuneration determined on the basis of the "economic
effect" of the invention. The inadequate protection of intellectual
property rights and the perfunctory financial reward inhibited
creative initiative, all the more that there existed a number of
restrictions on how the authors could dispose of their inventions,
which were considered state property. With the adoption of the
Patent Law in 1994, patents were given adequate protection and this
type of property was subject to up-to-date legal regulation.
Trade marks and industrial model designs are
provided for by the Law on Trade Marks and Industrial Models of
1967, which is regarded as rather important, as it also provides
for the geographic names of origin - an element of unquestionable
significance to a number of agricultural products and above all
Bulgarian wines, which make up a considerable share of the
country's exports.
Legal status of commercial entities and
their interrelations in the process of carrying out economic
activity
After the Liberation, trade legislation
included a Law on Commerce, Law on Market-Places, Law on
Cooperative Partnerships, Law on Stock-Exchanges, Law on Limited
Liability Companies, Commercial Shipping Law, Sea Trade Law,
Pre-Bankruptcy Work-Out Agreement Law, and others. A subsidiary
source of economic activity regulation were the general civil laws,
most notably the Law on Obligations and Contracts. Commercial law
provided the necessary legal framework of economic relations in
Bulgaria, which were based on private property, equal treatment of
commercial entities, and the competition under a market
economy.
Following 1944, commercial law lost its
significance in the context of centrally planned command economy.
The nationalization of private industrial and mining enterprises in
1947 and the subsequent adoption of the new Law on Obligations and
Contracts in 1951 in fact put an end to commercial law in the time
of socialism.
With the repeal of the old commercial
legislation, the regulation of the economic activity and relations
among commodity producers was covered by civil law and above all,
contractual law. A number of instruments designed to regulate
commerce, such as the commission contract, shipping and forwarding
contracts, the publishing contract, the insurance contract, etc.,
were covered by contractual law and more specifically, by the Law
on Obligations and Contracts, passed in 1951. However, those
instruments primarily served a single type of entities, namely the
socialist economic organizations, as citizens were generally not
allowed to engage in economic activities. A number of special
regulations and legislative acts were also passed - Law on
Contracts between Socialist Organizations, Foreign Trade Law,
Ordinance on Commercial Contracts, Ordinance on Interrelations in
the Investment Process, Rules and Regulations on Economic Activity,
and others, which regulated the legal status of the socialist
commercial entities and the relations among them.
The first attempt to break down the state
monopoly on economic activity took place with the adoption of Rules
and Regulations on the Collective and Personal Labor of Citizens
for Additional Production of Goods and Services (Decree N 35 of
1987 of the Council of Ministers). It granted citizens the
opportunity to exercise economic activity and to own means of
production of a type and size required for the purposes of that
activity. Citizens could own studios and workshops, shops, farming
facilities, trucks, and others.
While the Rules allowed the carrying out of a
wide range of activities, most of them were subject to special
subsequently passed regulations. They introduced a licensing system
for the exercise of those activities, as well as a number of formal
administrative procedures for the granting of licenses.
Foreign-trade activities, for instance, still remained an exclusive
monopoly of the state. On the other hand, the forms in which
citizens were allowed to carry out economic activities were limited
- citizens could engage in the production of goods and services by
running small workshops and retail outlets granted for use through
auctions and on the basis of contracts concluded for a term of up
to 5 years; by organizing small production collectives for carrying
out additional activity within socialist economic organizations or
the exercise of a craft, manufacture, or retail business, and by
supplying services upon registration.
One specific characteristic was the fact that
the production of goods and services could only be carried out
through personal or collective labor of citizens. Hiring labor
force, was prohibited.
In fulfillment of the basic normative act -
the Rules and Regulations on the Collective and Personal Labor of
Citizens for Additional Production of Goods and Services, it was
followed by the adoption of a number of other acts:
Decree N 17 of the Council of Ministers of
June 3, 1988, on the Reorganization of Domestic Trade and Services
(State Gazette, 46/06.17.1988);
Ordinance N 6 on the Supply of Transport
Services by Citizens, issued by the Ministry of Transport (State
Gazette, 75/09.29.1987);
Ordinance N 3 on Holding Auctions for the
Purpose of Granting Management of Small Objects, issued by he
Ministry of Trade and the Ministry of Finance (State Gazette
76/10.02.1987);
Ordinance N 6 on Granting Licenses for the
Exercise of a Craft, Organizing Manufactures, Trade, and Supply of
Services and on Registration of Licensees, issued by the Ministry
of Finance and the Ministry of Trade (State Gazette,
76/10.02.1988);
Ordinance N 7 on Architectural Designers'
Services, issued by the Committee on Territorial and Built-Up Area
Zoning (State Gazette, 78/10.09.1987);
Ordinance 1 on Software Design and the Supply
of Programming Services through Collective and Personal Labor of
Citizens, issued by the Information Technology Committee (State
Gazette, 80/10.16.1987);
Ordinance N 7 on the Supply of Pedagogical
Services, issued by the Ministry of Culture, Science and Education,
(State Gazette, 40/05.27.1988);
Ordinance N 7 on Administrative and Legal
Services, issued by the Ministry of Justice (State Gazette,
59/08.02.1988);
Ordinance N 1 on Family Run Hotel Businesses,
issued by the Ministry of the Economy and Planning (State
Gazette, 66/08.26.1988);
Decree N 53 of the Council of Ministers of
September 15, 1987 on Establishing a Table on the Size of Fees of
Persons Supplying Services
Ordinance N 7 on Determining the Fees and the
Income Tax on Incomes Acquired under the Conditions of the Rules
and Regulations on the Collective and Personal Labor of Citizens
for Additional Production of Goods and Services, issued by the
Ministry of Finance (State Gazette, 76/10.02.1987).
The next step in abolishing state monopoly on
economic activity was made with the adoption of Decree N 56 on
Economic Activity, which introduced the so-called company
organization. The company organization of economic activity was an
attempt to restore, or reestablish rather, market economy
principles in the context of centralized, planned economy.
Decree N 56 on Economic Activity prescribed
the entities that individuals could form or participate in, in the
exercise of their right to take part in economic life. The first
text of Decree 56 allowed citizens to form only sole
proprietorships or partnerships, and partnerships, with only the
latter having the status of legal persons. It was not until 1990
that individuals were allowed to form or participate in limited or
unlimited liability companies and joint-stock companies. At the
same time, the restriction limiting participation to 2 companies at
the most was still valid.
The use of "hired labor" was allowed for the
first time, though the number of workers that could be employed was
limited to 10.
Citizens were purportedly free to choose,
register and exercise any objects of activity. However, this
liberal system was immediately constrained by the condition that
should there be a law, or a decree or other act of the Council of
Ministers prohibiting the exercise of a particular economic
activity by citizens' companies, courts would deny statement of
that activity in the objects of the company upon its registration.
Thus very soon, a number of government acts and regulations
reestablished a restrictive system with respect to the possible
objects of private companies. For instance, speculative activity
was prohibited, meaning any activity involving buying of goods for
the purpose of reselling them. In such cases companies could be
terminated upon request by the competent state authority or the
public prosecutor.
On the other hand, according to the initial
text of the Rules for the Implementation of Decree N 56 on Economic
Activity, citizens' companies were restricted with respect to the
foreign trade activities they could engage in. The sole
proprietorships and partnerships could engage in import and export
through companies that were legal persons. At the same time,
citizens' partnerships, which had legal person status, were
prohibited from carrying out trade representation in the country
and abroad, as well as from exporting goods manufactured by other
companies, or importing goods other than those required for the
purposes of their own activity.
Subsequently those restrictions were lifted
and private companies were allowed to engage freely and
independently in foreign trade activities with no permissions from
state authorities required, except in the cases when the Council of
Ministers set import and export quotas and conditions with respect
to certain goods, or prohibited the import and export of certain
goods, or established licensing with respect to certain
foreign-trade transactions. The freedom of private companies to
engage in foreign-trade activities was expressed in their right to
negotiate and conclude contracts with foreign contracting parties,
to make and receive payments, to contract for the accessory
activities involved in foreign-trade transactions - freight,
insurance, commissions, and others.
The rigid interpretation of speculative
activity was also dropped. With respect to foreign trade, it was
possible to export both the private company's own products, and
goods produced by other companies. The restrictions on imports were
also lifted - private companies could import goods required for
their own activity, as well as goods meant for sale in the
country's retail network, for renting out, etc.
At the same time, however, private companies
were still facing the problem of the established foreign exchange
system. According to the provisions of Decree N 32 of the Council
of Ministers of April 10, 1990, convertible currency transactions
at market exchange rates were organized by the Bulgarian Foreign
Trade Bank through auctions. Private sole proprietorships and
partnerships and partnerships were required to sell to the
Bulgarian Foreign Trade Bank 50 per cent of their foreign currency
results from the export of goods and services, reexport, etc., at
the current market exchange rate. The currency results were
calculated after deducting the value of imported materials and
packaging paid in foreign currency for the production of the
exported goods, expenses for transport, insurance, commissions. The
remaining sum after the sale of 50% of the foreign currency
revenues was left at the disposal of the respective private
company. The companies receiving income in convertible currency
from international tourism sold 80% of their currency earnings to
the Bulgarian Foreign Trade Bank at the market exchange rate, with
the remaining 20% left at their disposal. The conditions were even
more unfavorable for the companies licensed to sell imported goods
and services in convertible currency or which received income in
foreign currency by acting as representatives, intermediaries, or
agents. They were required to sell 90% of their currency earnings
to the Bulgarian Foreign Trade Bank at the market exchange rate,
with barely 10% remaining at their disposal.
Decree #15 of the Councils of Ministers of
02.08.1991 stipulates that all payments on the territory of the
country are done in BGL; the sales in foreign exchanges allowed in
the cases when they are done by local legal persons, after
obtaining of permission by the Ministry of Finance. The purchases
and sales of foreign exchange by banks, financial houses, brokers,
change bureaus, etc. is allowed after acquisition of permission by
BNB, as provided by the Law on banks and crediting. The purchases
of foreign exchange by other natural and legal persons is not
limited. Under certain terms and conditions in the Regulations, the
local persons could purchase foreign exchange from the commercial
banks for imports of goods and services, transportation costs,
interests and principals on BNB approved credits, insurance costs,
bank commissions, business commissions, etc.
There existed a number of regulations and
legal possibilities meant to place private companies on an equal
footing with other companies. However, they were insufficient in
themselves in the absence of guarantees about their application.
The negative attitude and common practice of underestimating and
neglecting private economic initiative in fact thwarted the
emergence of truly equal business conditions.
Nevertheless, following the adoption of
Decree N 56, there occurred a number of positive changes regarding
the independence of commercial entities.
In accordance with the Law on Obligations and
Contracts, the economic activity of companies and their
interrelations were realized on a contractual basis. That was a
considerable step forward compared to the former system of state
commissions and obligatory planned deliveries.
The Law on Obligations and Contracts was
created in 1951 and though its purpose was to regulate contracting
between persons in the context of socialist planned economy, its
provisions, particularly after the amendments and additions made in
1993, generally meet market economy requirements as well. The chief
instruments of civil law which have been adopted and regulated by
the Law constitute the basis for the development of private law
relations. According to the stipulations of the Law, in their
capacity of contracting parties, the commercial entities are free
to determine the content of the contract at will, on the sole
condition that it is not against the law. The contract has effect
between the parties and with respect to third parties can only have
effect in cases specified by law.
One of the most consequential legislative
reforms for encouraging private sector development consisted in the
adoption of the Law on Commerce.
The first two parts of the Law are devoted to
the legal and organizational forms of carrying out economic
activity. A definition is provided of the trader as a commercial
and legal entity. The term "firm", which is quite meaningless from
a legal point of view and which used to denote the commercial
entity in the text of Decree N 56, has been dropped. It is now used
to signify the name of the commercial entity. The various types of
commercial entities have been defined - the sole trader,
state-owned and municipal enterprises, as well as the commercial
companies, including the general partnership, the commandite
partnership, the limited liability company, the joint stock
company, the company limited by shares. However, it is the
Cooperatives Act that provides for the cooperatives as independent
entities. The Law on Commerce also provides for trade
representation.
Part three of the Law on Commerce, which is
to regulate trade transactions, has still not been adopted, but as
pointed out above, the relations between the commercial entities
are subject to the provisions of the Law on Obligations and
Contracts.
Part four of the Law on Commerce - Bankruptcy
- was adopted in 1994 and regulated the legal procedure of
adjudication of bankruptcy and/or insolvency.
Taxation
Up to 1988 the legal framework of taxation
was formed by numerous legislative and government acts - the
Constitution of the People's Republic of Bulgaria, tax laws, acts
of the Council of Ministers. In practice, however, it was also
subject to continual modifications and specifications by various
regulations, instructions, etc., on an administrative level. Until
the end of 1988 the legal persons liable by law to pay taxes were
the state-owned and municipal economic organizations and the
cooperatives. Taxing of public organizations was limited, as few of
them were engaged in economic activity.
The period of extremely centralized state
regulation of the national economy was characterized by the use of
the so-called "two-channel tax system" - turnover tax and
contributions to the state budget. After the establishment of a new
management system in 1965 there followed the introduction of other
tax payments, with the fiscal aspect being of secondary importance,
while the chief purpose was to use them as "economic levers" in
orienting the activity of the enterprises towards a specific goal.
Each new model of the economic mechanism changed the name, content,
size and organization of these tax payments. Tax legislation was
thus marked by legislative instability.
The incomes of individuals carrying out some
sort of economic activity were charged according to the Income Tax
Law.
As of January 1, 1989 and the introduction of
the so-called "company organization", along with the major
taxpayers - the state-owned and municipal companies, there appeared
new entities - private companies, branches of foreign persons
licensed to carry out economic activity on the territory of
Bulgaria, as well as joint ventures.
The adoption of Decree N 56 on Economic
Activity and the provisions for commercial companies marked a new
beginning for the system of commercial entity taxation.
The conditions and organization of accounting
in private sole proprietorships and partnerships, as well as the
taxation of the personal incomes of their members and employees
were provided for by Ordinance N 3 on the Organization of
Accountancy in the Sole Proprietorships and Partnerships of
Citizens, issued by the Ministry of the Economy and Planning and
the Central Statistical Direction (State Gazette
50/1989).
Private partnerships organized their
accounting in the manner established for legal person
companies.
Despite the principle proclaimed by art. 4,
par. 1 of Decree N 56 that all companies are granted equal business
conditions, in practice private companies were placed on an unequal
footing in terms of taxation, moreover, at the very beginning of
their economic activity.
Thus, for instance, instead of removing
taxation on that part of the private company's earnings which is
spent on the acquisition of built-up real estate for industrial
purposes, the practice remained of charging the entire income.
Typically, the chief source for purchases of real estate,
constituting a fixed asset of every company, used to be the
provisions for depreciation. However, that placed the newly created
private companies on an unequal footing since only state-owned
companies had acquired fixed assets up to then (for instance, real
property - land and buildings), moreover, mostly granted to them
free-of-charge by the state. On that basis state-owned companies
were entitled to provide for depreciation on the total fixed asset
value and use that free of tax allowance to buy new fixed assets,
etc.
The newly created private companies had no
fixed assets and consequently no basis to make deductions for
depreciation. This led to absurd situations when a private company
wished to buy real property from the income received in the end of
the year and was required to pay profits tax even on the money
spent for the purchase, since the state taxed the entire
earnings.
Another serious problem for the development
of private companies was the fixed depreciation rate of 1 per cent,
determined in accordance with the Ordinance N 3 on the Organization
of Accountancy in the Sole Proprietorships and Partnerships of
Citizens. All allocations above that percentage were taxed, which
posed another obstacle to the normal development of the business,
more specifically accelerated depreciation and renovation.
According to Art. 64 and 78 of the then
acting Constitution, taxation was determined by law, and not by
government acts and regulations. However, Ordinance N 3 required
sole proprietorships and partnerships to pay the due tax monthly,
while according to art. 33, par. 1 of the Income Tax Law (in its
version at the time), the tax was paid annually.
Furthermore, the newly formed companies were
granted no preferential treatment - for instance, reduced taxation
or tax exemption in the first few years of their existence.
All of these tax regulations placed private
business in a disadvantageous position, and on the other hand
prompted it to seek ways of sidestepping the law and tax
evasion.
Since the adoption of the Constitution of the
Republic of Bulgaria in 1991, taxation has been based on the
provision of art. 60 of the Constitution, according to which
citizens are liable to pay taxes and duties fixed by law according
to their incomes and property, with tax concessions and
discriminatory taxes being established only by law. The National
Assembly determines taxation and the amount of payable taxes
according to Art. 84, Paragraph 3 of the Constitution. The process
of building up a tax system in a position to meet the needs of the
transition to market economy is currently under way.
Presently our tax system includes the
following types of taxes, almost all of which apply to the economic
activity of the private sector as well.
Direct property taxes:
Built-up Real Estate Tax
This tax has been regulated by Art. 5-21 of
the Law on Local Taxes and Tariffs. Sole Proprietorships and
private companies which own buildings are liable to pay the
respective taxes.
Inheritance Tax
It has been provided for by Art. 22-32 of the
Law on Local Taxes and Tariffs.
The category of direct property taxes used to
include the so-called rent tax, or land tax. It was regulated by
art. 87, par. 1 of Decree N 56 and used to be charged only on legal
persons engaged in economic activity and having been granted the
use of farm land. Farming cooperatives, sole proprietorships, and
farmers were exempted from that tax. The rent tax has been
abolished as of October 1, 1993, with the repeal of the respective
provisions of Decree N 56.
Direct income taxes:
Income tax
It is imposed by the Income Tax Law. The tax
is charged on all personal incomes (from contracts of employment
and contracts of services, rentals, dividends to shareholders of
cooperatives or companies), the incomes of sole proprietorships,
and of non-profit organizations.
The persons liable to pay income tax
are:
- all Bulgarian citizens, irrespective of
domicile and place of residence;
- foreign citizens, with the tax being
charged only on the incomes received in Bulgaria;
- sole proprietorships- the tax is charged on
the incomes received from their business activity;
- foundations and non-profit
organizations.
The incomes charged under art. 13 of the
Income Tax Law include incomes from private business activity,
registered under the procedure prescribed by Decree N 35 of the
Council of Ministers on the Adoption of Rules and Regulations on
the Collective and Personal Labor of Citizens for Additional
Production of Goods and Services; the income from the business
activity of sole proprietorships, with a mandatory requirement of
keeping accounts in accordance with the Accountancy Law.
Profits tax
This tax has been regulated by art. 87 of
Decree N 56 on Economic Activity. It is charged on the annual
profits as the difference between total revenues and the expenses
under sections I, II, and III of the Income Statement (addendum to
art. 40, par. 1, sec. 2 of the Accountancy Law). The resulting net
profits are subject to restructuring under art. 73, par. 5 of the
Rules for the Implementation of Decree N 56 on Economic
Activity.
The profits tax is charged at a rate of 40
per cent, the banks and persons specified under art. 1, par. 4 of
the Bank and Credit Activities Act pay at a rate of 50 per cent,
and the State Savings Bank at a rate of 70 per cent.
The following tax concessions are presently
given to private legal persons under art. 87, par. 4 of Decree N
56:
- companies pay at a rate of 30 per cent if
their taxable annual earnings do not exceed BLV 1 million.
- companies reduce their taxable earnings by
the amount spent and/or payments on bank loans for the acquisition
or creation of tangible or intangible fixed assets in the country.
The tax reduction applies upon acquisition of the following assets:
commercial and industrial buildings and land, provided that a
licence has been obtained for the construction of such buildings;
facilities, machinery, and equipment; means of transport (excluding
automobiles) for cargo and passenger transportation and supply of
services; productive and draught animals.
Up to 1991, the provision of art. 90, par. 2
of Decree N 56 allowed in the case of certain manufactures and
activities specified by the Council of Ministers for payments on
the principal and interests on investment loans to be made from the
earnings prior to charging the profits tax.
On the other hand, under the existing
regulations until 1991 - art. 90, par. 4 of Decree N 56, the
Council of Ministers could grant full or partial tax exemption to
certain activities or territories. Thus, for instance, up to 1991,
manufactures and services in built-up areas with up to 1,000
inhabitants were exempted from profits tax. Where the population
was between 1,000 and 5,000 people there was a 20% reduction of the
charged profits tax for activities in the trade and services
sectors, according to Decision N 138 of the Council of Ministers of
May 31, 1991. Decree N 97 of the Council of Ministers of May 29,
1991 exempted from profits tax manufactures and activities in
specific built-up areas along our southern and western borders.
Decree N 130 of the Council of Ministers exempted from taxes
companies in the border zones licensed to trade in foreign
currency. According to par. 6 of the Transitional and Final
Provisions of the Rules for the Implementation of the Law on the
Ownership and Use of Farm Land, the legal persons who are
agricultural producers of vegetable and animal products are
exempted from profits tax.
Currently the concessions with respect to the
payment of profits tax are established in art. 20, par. 2 of the
Law on Political Parties, art. 15 of the Law on the Academic
Autonomy of Higher Education Institutions, art. 6 of the Foreign
Aid Agency Law, art. 12 of the Bulgarian Academy of Sciences Law,
art. 26 of the Bank and Credit Activities Act.
A number of tax concessions used to be
provided for foreign subsidiaries and companies with foreign
participation, but have been abolished with the amendment to Decree
N 56 of October 1, 1993.
One such provision, for example, was found in
art. 107 of the Decree, according to which the profits of
subsidiaries of foreign persons or companies with foreign
participation above 49 per cent and above USD 100,000 or the
equivalent in some other currency, were charged at a rate of 30%.
The provisions were also abolished according to which profits from
economic activity on the territory of the duty-free border zones
were exempted from profits tax in the first five years, and were
subsequently charged at a rate of 20 per cent. The provision of
art. 112 of the Decree was equally abolished, according to which
companies with foreign participation and the subsidiaries of
foreign persons were exempted from profits tax for a term of five
years following their registration, when their economic activity
was in certain high-tech fields specified by the Council of
Ministers, in agriculture, and the food-processing industry.
Tax on Pay-Roll Increase
This tax has been regulated by art. 87, par.
1 of Decree N 56. It is charged on the size of the pay-roll
increase for each trimester of the current year and payable by
companies with state or municipal participation over 50%.
Indirect taxes:
Turnover and Excise Tax
This tax was imposed by the Law on Turnover
Tax and Excise Duties. It was charged on the sale of goods and
services. Liable to pay this tax were companies, state-owned and
municipal enterprises, sole proprietorships and private persons
producing or importing taxable goods and services.
With the introduction as of April 1, 1993 of
the Value Added Tax Law, the Law on Turnover Tax and Excise Duties
has been abolished.
VAT
All persons that have annual taxable turnover
above 1,5 mln.leva must register under the Value-Added Tax Law. The
rest have an option. All business transactions on the territory of
the country , except the export and tax-free ones are subjected to
VAT taxation. Tax-free transactions as provided by Art.9 Par.1 of
the VAT Law are:
- land ownership transfers;
- financial, insurance, educational or
healthcare services;
- leasing of land (except parking lots) and
premises (except hotel and motel accommodation, etc.) and parts of
them;
- transactions carried out by public
organizations, when the object of the transaction has been received
by the organization as a donation;
- participation in gambling (lotteries,
pledges, etc.)
- transfer of enterprise ownership when this
is done under the Law on restructuring and privatization of state
and municipal enterprises;
- legal services transactions under the Law
on Judicature;
- sales of entrance tickets to museums,
libraries, zoological and botanical gardens, art galleries and
theaters.
The tax rate is 18%; it is deducted on the
date of the conclusion of the transaction and is payable within 14
days after the respective tax periods. These periods are two,
depending on the amount of the taxable turnover. For persons with
annual taxable turnover over 10 mln.leva, it is one month. All
other persons could choose their tax period to be either one or
three months. The persons with taxable turnover over 50 mln.leva
pay their tax in two monthly installments.
Duties
Any commercial entity importing raw
materials, materials, finished products, regardless of their
designation - whether for sale in the domestic market or further
processing - is liable to pay duty. The legal regulation is
contained in the Customs Law, the Rules for the Implementation of
the Customs Law and numerous government acts on the control,
procedure of collecting, and the customs tariff. The frequent and
numerous changes in the customs regulations is one of the reasons
for the evasion or the delayed collection of payable duties.
Other contributions to the budget
There are a number of provisions in Decree N
56 requiring companies and sole proprietorships to make additional
payments to the state, called contributions, such as:
- legal persons with state and municipal
participation over 50% carrying out commercial activities as
defined by art. 1 of the Law on Commerce make obligatory
contributions to the municipalities amounting to 10% of their
taxable profits, and to the MeliorationŠ½s Fund amounting to 2%;
- employers make obligatory contributions to
the Professional Training and Unemployment Fund to the amount of 7%
of the accrued payroll, excluding benefits and bonuses;
- obligatory contribution to State Social
Security to the amount of 35% of the accrued payroll;
In conclusion, it should be noted that the
tax reform has not been carried out consistently since 1989.
At one point tax concessions did not apply to
private legal persons, with the exception of foundations and
cooperatives, but only concerned private persons.
On the other hand, the considerably delayed
introduction of the value added tax and charging of the turnover
and excise tax created a number of problems, both in terms of the
prompt collection of payable taxes, and in impeding the activity of
companies.
The requirement for taxation of citizens and
commercial entities to be established by law has not as yet been
fully met. The legal framework of taxation of commercial entities
is still set by the repeatedly amended Decree N 56. There still
exist a great many government regulations which in fact allows for
constant tax modifications on the part of the executive power.
Legal framework of foreign investments
and their role for private sector development
The significance of foreign investments for a
country's development is incontestable. That is particularly
relevant to Bulgaria, which is now in its fourth year of transition
from centralized state command and predominantly state-owned
property to market economy. Foreign investments not only bring
capitals into the country, but managerial skills and experience and
new technologies, they create jobs and outlets in new foreign
markets. They also have a favorable impact on the private sector.
Last but not least, the presence of foreign investments enhances
the competitiveness of the national economy.
In the years of socialist planned economy, as
the development of the private sector itself was inadmissible,
foreign investments were denied access to the Bulgarian economy.
Unless, of course, we consider the joint ventures that were being
established between socialist organizations from Bulgaria and the
other COMECON member countries.
It was not until the 1980s, with the adoption
of Decree N 535, that there appeared opportunities to set up joint
ventures with western companies. The legal framework was
subsequently extended with the adoption of Decree N 56 on Economic
Activity and foreign investors could establish trade representative
offices, engage in independent business activities, open branches
or establish joint ventures in the country. However, foreign
investments were allowed access to the country by a licensing
system.
That system was retained even after the
adoption of the first Foreign Investment Law in 1991.
The presence of a stable foreign investment
legislation framework is the first and foremost precondition for
actual investments. Bulgaria has one of the most liberal and
up-to-date laws in that respect. The 1992 Law on Economic Activity
of Foreign Persons rectified the shortcomings and deficiencies of
the existing regulations up to then. It provided for the
indispensable preconditions allowing foreign persons to conduct
business in the country. The international law principles adopted
by the Law provide the necessary guarantees to foreign
investments.
The scope of the Law is clear enough -
foreign persons are defined as registered abroad legal persons and
companies which are not legal persons, as well as individuals who
are foreign citizens with permanent residence abroad. Foreign
citizens who are permanently resident in Bulgaria are not
considered foreign persons under the provisions of the Law and it
is consequently the national regime that applies to them, whereas
Bulgarian nationals with double citizenship are free to choose the
status of Bulgarian or foreign citizens. Similarly, companies with
foreign participation registered in Bulgaria are regarded as
Bulgarian legal persons and are not considered foreign persons.
All familiar forms of economic activity
allowed by Bul |