Bulgarian perspectives on the abuse of rights in lights of the Directive2011/7/EU on combating late payment in commercial transactions

• Author: Zhana Koleva
• Position: Zhana Koleva - Department of Civil Law, Faculty of Law, University of Plovdiv 'Paisiy Hilendarski', Bulgaria, kolevazh@gmail.com.
• Pages: 599-606

Bulgarian perspectives on the abuse of rights in lights of the Directive

2011/7/EU on combating late payment in commercial transactions1

Assistant professor Zhana KOLEVA2

Abstract

The subject matter of this resea rch is the abuse of rights in context of the late

payment in commercial transaction. The a buse of rights as a law concept is well known in

continental law families dates back to ancient Roman law. Consider ing the vision of the

Directive 2011/7/EU of the European P arliament a nd of the Council of 16 Februa ry 2011

on combating late pa yment in commercia l tra nsaction3 the Bulgarian legislation offers a

new point of view of that concept which is cu rrently been discussed in this article as a new

law concept. That point of view has been considered by the a uthor as an abuse of inter ests

instead of a buse of rights. That vision was legislative introduced by the provisions of Art.

303, par agraph 1-2 BCA and Art. 309, par agraph 3 BCA in response to the r equirement

of a cquis communautaire 4. As well as the abuse of interests is considered a s a new la w

concept there is a necessity of a clea r explanation of that notion a nd criteria for distinguish

it from the old concept of the abuse of rights.

Keywords: abuse of r ights; BCA – Bulgaria n Commerce Act; OCA – Obliga tions

and Contracts Act; CRB – Constitution of the Republic of Bulga ria; BGB – Bürgerliches

Gesetzbuch; ABGB - Allgemeines Bürgrliche Gesetzbuch.

JEL Classification: K20, K22, K33

1. Introduction

The term “abuse” can be found in different legal texts of the Bulgarian

Commerce Code. We find it in the headline of Article 289 BCA and in the context

of the three others – Article 303a, Paragraph 1 and 2 BCA and Article 309a,

Paragraph 3 BCA. We logically presume prima facie that the notion of “abuse” is a

uniform concept. Nevertheless, the legal provisions constitute a doubt. Such doubt

stems from the phrases, which has used in the legal texts. In some cases, there is an

“abuse of right”, but in the others certain actions are recognizes as “abuse of

interest”. Such substantive difference disproves the concept of the uniform notion

of “abuse”. However, the veracity of this concept should be verified.

1 J, L 48/23.02.2011.

2 Zhana Koleva - Department of Civil Law, Faculty of Law, University o f Plovdiv “Paisiy

Hilendarski”, Bulgaria, kolevazh@gmail.com.

3 For convenience to readers the name Directive 2011/7/EU of the EP and o f the Council on

combating late payment by commercial transaction will be simply used in context of the article as

“The Directive”.

4 Community acquis.