COMPLAINTS FILING BY THE CCPD
CCPD performs its activities on the basis of procedures which are brought in compliance with the Consumer Protection Act, approved by the Governor of the Bulgarian National Bank and published in State Gazette, issue 101/2015. The full name of the procedures is “Regulation on the Activities of the Conciliation Commission on Payment Disputes“ (RACCPD).
DISPUTES OF THE COMPETENCY OF CCPD
The subject of the disputes that fall in the competency of CCPD is the following:
- the CCPD resolves domestic and cross-border disputes arising from contracts for providing distant payment services in accordance with the Distance Marketing of Financial Services Act. When resolving cross-border disputes received through the online platform for dispute resolution the Commission keeps the requirements set in the Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (ОВ, L 165/1 as of 18th of June 2013), Art. 2, para. 1 of RACCPD;
- the CCPD solves disputes arising between payment service providers and payment service users as well as between electronic money issuers and their clients falling within the scope of the definition for a payment service in accordance with Art. 4 of the Law on Payment Services and Payment Systems at the value up to 25 000 BGN (Art. 2, para. 6 of the RACCPD);
- the CCPD does not deal with payment service users’ claims for intangible damages, unjustified enrichment and personal torts, which can be proved in the court (Art. 2, para. 7 of the RACCPD).
GROUNDS ON WHICH THE CCPD CAN REFUSE TO FILE A DISPUTE (Art. 16 of the RACCPD)
- the dispute is not within the competence of the Commission;
- the payment service user has not tried to solve the dispute directly with the payment service provider;
- the payment service user has not filed a claim to the Commission within a period of one year since the date from filing his/her claim to the payment service provider;
- the file is not submitted by a person in his/her quality of a payment service user in accordance with item 21 of the Supplementary Provisions of the Law on Payment Systems and Payment Services;
- it is determined that there is a legal or arbitrary case on the dispute or it is being solved by another out-of-court body for dispute resolution, including the cases where a mediation procedure has been opened or by the authorities for pre-trial proceedings;
- the imperfections in the claim have not been removed within a period of 10 working days;
- the dispute is solved by an agreement;
- the claimant withdraws his/her claim at a state of the dispute resolution;
- in case of a death of the claimant;
- the payment service provider ceases its activities and there is no condition of succession, it has been placed under special conservatorship or an insolvency procedure was initiated;
- the claim is for a value higher than 25 000 BGN;
- the resolving of the dispute is going to hinder seriously the activities of the Commission due to factual and legal complexity;
- when investigating the dispute the Commission finds data for well-grounded doubts for a crime, it ceases the respective competent authority, sends the collected evidences and terminates the resolution procedure (Art. 21 of the RACCPD).
In which the consumers file their claims to the CCPD and in which the reconciliation procedure is held is Bulgarian (Art. 11, para. 3 of RACCPD).
SOURCES OF LAW
The main sources of law to which the CCPD refers to is the Law on Payment Services and Payment Systems (State Gazette, Issue 20 as of 6th of March 2018) and Ordinance № 3 on the Terms and Procedures for the Execution of Payment Transactions and Use of Payment Instruments (State Gazette, issue 62/2009, in force as of the 1st of November 2009).
The Obligations and Contracts Act, the Commercial Law and the Consumer Protection Act are with a subsidiary application.
In resolving disputes the Commission applies not only the laws and regulations and the European Union legislation but it also strives for achieving a compromise between the two counterparties in the dispute by keeping the principles of voluntarism, expertise, independence, impartiality, transparency, efficiency, fairness, freedom and legitimacy, set in Chapter Nine, Section II of the Consumer Protection Act (Art. 3, para. 8 of the RACCPD).
The dispute resolution is subject to procedural order, regulated by the Regulation on the Activities of the Conciliation Commission on Payment Disputes (State Gazette, issue 101/2015).
REQUIREMENTS TO THE COUNTERPARTIES BEFORE THEY TURN TO THE CCPD FOR FILING A DISPUTE
The Commission files disputes after they have been referred to the payment service providers and they have not responded to the claim in a 14-day period after its filing as well as the decision on the claim does not satisfy the payment service user (Art. 9 of the RACCPD).
The claimant should also apply a declaration to the claim as well as all the documents necessary to clarify the subject of the dispute (including the decision of the payment services provider in cases where it has been pronounced within the 14-day period), that:
- the dispute has been filed to the payment service provider and it has not pronounced on it within the mandated period. That declaration is not applied when there is a resolution by the payment service provider on the claim;
- at the time of filing the claim the claimant has not referred the dispute for solution in the court, the arbitrary court or another body for out-of-court dispute resolution or to the pre-trial bodies;
- the counterparties have reached an agreement.
POSSIBILITIES TO WITHDRAW FROM THE PROCEDURE
The claimant can withdraw his/her claim at every stage of the reconciliation procedure by which it is being ceased. (Art. 16, para. 1, item 3 of the RACCPD).
EXPENSES FOR THE COUNTERPARTIES PARTICIPATING IN THE DISPUTE AND RULES FOR THEIR DISTRIBUTION
The reconciliation procedure is free of charge for the counterparties and they do not pay any fees for filing the dispute in the Commission (Art. 10, para. 1 of the RACCPD).
The expenses made by the counterparties in the dispute (for presentation, expertise, appointed experts, translations, etc.) are for their own account.
Each of the counterparties can suggest in the content of the conciliatory proposal a clause for bearing the expenses if the claim is filed in advance and if it is accepted by the other counterparty (Art. 10, para. 3 of the RACCPD).
FINAL ACT FOR COMPLETING THE PROCEDURE
The reconciliation procedure ends with a written conciliatory proposal which should respond to the requirements sent in Art. 23, para. 3 of the RACCPD which is usually adopted by the majority of the Commission’s staff.
Within a period of 5 working days after the preparation of the conciliatory proposal together with the motives it is sent in a written form to the counterparties on the dispute.
Within a period of 10 days after receiving the conciliatory proposal each party should turn to the chairperson of the Commission his/her written statement if the proposal is accepted or refused where the number and the date of the conciliatory proposal should be indicated. The proposal should be signed. The following things should be taken into consideration:
- The conciliatory proposal should be accepted or refused by each of the counterparties explicitly, unconditionally and entirely. The existence of additional stipulations or reserves in a written form or the lack of a written statement within the deadline should be treated by the Commission as a refusal of the conciliatory proposal by the respective counterparty in the dispute;
- The conciliatory proposal can be different from a court judgement;
- The adoption of the conciliatory proposal within the deadline has the force of an agreement between the counterparties;
- If some of the counterparties does not perform its duties on the adopted conciliatory proposal, the other party can turn to the court for resolving the dispute that has been subject to the agreement;
- The counterparties can enforce the concluded agreement by presenting it for approval in front of the competent authority;
- The counterparties may demand the conciliatory proposal to be adopted by the conclusion of an agreement between them through a notary authorization of the signatures.
AVERAGE CONTINUATION OF THE PROCEDURE
The Commission resolves the dispute per se within a period of two months after the deadline for receiving all documents and statements and the evidence has been collected.
In cases or factual or legal complexity the Commission may decide to prolong the period for the dispute resolution by 15 working days (Art. 20 of the RACCPD).
LEGAL CONSEQUENCES RESULTING FROM THE CONCLUSION ON THE PROCEDURE
The procedure ends with the preparation of a conciliatory proposal by the Commission. Within a period of 10 days after receiving the conciliatory proposal the counterparties should turn to the chairperson of the Commission with a written statement whether to adopt it or not.
The conciliatory proposal should be adopted or declined by each of the counterparties explicitly, unconditionally and entirely. The existence of additional conditions and reserves in the written statement or the lack of a written statement within the required period by the Commission is treated as a rejection of the conciliatory proposal by the respective counterparty in the dispute.
The conciliatory proposal can be different than the decision decreed by the court.
The conciliatory proposal does not exclude the possibility for judicial protection.
LEGAL POWER OF THE CONCILIATORY PROPOSAL
The adoption of the conciliatory proposal within the defined period has the power of an agreement between the counterparties.
If the counterparty does not perform its obligations in accordance with the adopted conciliatory proposal, the other party may turn to the court for a resolution of the dispute that is subject to agreement.
By the demand of the counterparties the conciliatory proposal can be adopted by concluding an agreement between the counterparties through a notary authorization of the signatures.
The parties can enforce the concluded agreement by presenting it for approval before the competent court.