© New Balkans Law Office 2019

New Balkans Law Office: Bulgarian Lawyers

Information and Disclosure Rights in Bulgarian Public (or Joint-Stock) Companies

Minority shareholders in all types of corporations often wish to exercise rights to obtain information, for instance:

  • on the financial and non-financial performance of the company in which they hold an interest;
  • on the remuneration of its management by means of salary, shares or other incentives; and
  • on transactions the management or the company has undertaken with related parties.

In this respect, minority shareholders are not, without else in a good position, since they generally do not have the right to control management, appoint any directors or board members or use the General Meeting of the company to adopt resolutions which may allow them the type of access that they may need. They need additional legal rights to enable them to achieve such objectives. 

Bulgarian law distinguishes quite clearly the rights to information which the shareholders in private, closely-held, companies have from those of the shareholders of public (joint-stock) companies. In this note, we deal with the rights incident to shareholding in a public (whether listed or unlisted) company. Private (or limited liability) company shareholders are in general in a more advantageous position, but it is also one which is differently structured and should therefore be properly the subject of special treatment elsewhere.

We look below at several contexts in which information or disclosure rights arise in favour of minority shareholders:

As participants in a company's General Meeting ("GM"), minority shareholders have the right to receive information related to the agenda of each session of the GM, and more specifically, they can require copies of the written materials related to each session of a GM (whether extraordinary or regular annual). Such written materials should in principle be provided or made available to them (perhaps by posting on an accessible internet page) by the date of announcement of the invitation for the GM in the Company Registry. The agenda ought in principle to be prepared by the Board to a certain level of detail, and to be supported by documentation, including but not only where items on the agenda include proposed shareholder resolutions.

A second way in which shareholders may exercise rights to access information is In the context of corporate events (eg, information to be provided to shareholders - but not to others - at times of reorganisation, conversion to a private company, liquidation, or at the times of other key changes and the associated votes).

Thirdly, there may be in Bulgarian law a possible general right of shareholders to ask the Board questions connected with the management of the company and to receive answers to them (arguably this right is constrained  within certain reasonable limits, and applies only where it is not against the interests of the company). Such a right exists for instance in German law in relation to Aktiengesellschaft companies (AkzG §131(1)) (only during GMs), and may be applicable in a nascent form in Bulgarian law which is otherwise very receptive in corporate matters to the influence of German private law.

Fourthly, any rights to information or disclosure that may realistically follow from a court order in the context of proceedings by a shareholder against the company, in which the shareholder claims for a protection of its interests may also assist the disclosure-seeking shareholder.

All of the above would be enforceable ultimately by court orders via Arts. 71 and 74 of the Commerce Act (shareholders’ rights to bring proceedings to defend their interests or have decisions cancelled - eg, a decision for which a shareholder claims that insufficient information was provided).

In addition to information/disclosure rights, shareholders have a general entitlement to acting to defend their interests, pursuant to the same statutory provisions.

Disclosure and information rights are a very important instrument in establishing corporate value and performance and may potentially serve in substantiating and supporting legal action by shareholders designed to police the interests of the company and the avoidance of dissipation of value. It should be noted that on its face, Bulgarian law requires a shareholding of 10% or for the initiation of legal proceedings by or on behalf of a company against one or more of its director(s). This threshold may not be crossed by many shareholders in Bulgarian companies, particularly in listed ones, which have historically had very low free floats. It is nevertheless a highly useful tool because of the legitimate check-and-balance mechanisms (including regulatory and reputational ones) which it opens up, and shareholders should be encouraged to use it.

We regularly advise on the application of the related legal principles and would be pleased to assist on the topic.

Administrative Court makes denials of access to records harder

On 27 June 2011, the Supreme Administrative Court of Bulgaria quashed аs unlawful a Decision of the Data Protection Commission (“the Commission”) dismissing a complaint against the refusal of a Bulgarian hospital to provide medical records. New Balkans Law Office has been acting for T. F., the Applicant. The Supreme Administrative Court ordered the Commission to substitute for the quashed decision a new decision ordering the hospital to effect full disclosure.
In previous proceedings before it, the Commission had denied that the hospital had acted as a data controller in relation to its patients’ records, within the meaning of the Bulgarian Personal Data Protection Act (“PDPA”). Consequently, the Commission had proceeded to deny that the PDPA imposed obligations on the hospital to ensure the exercise of the Applicant’s usual rights under art. 26 of PDPA .
The hospital had earlier refused requests to provide the medical records twice, claiming invalidity of the requests to it, but without specifying. The Supreme Administrative Court found that after two express but unreasoned refusals to provide the medical records, the arguments of the hospital as to irregularity were spurious. A request for disclosure could be either valid or invalid, but with valid requests capable of being defective. The fact that the request had been refused twice indicated that the data controller had accepted its validity, but had found it defective. If it had been defective, the correct procedure for the data controller should have been to request the removal of the defects, following which the data controller should have considered the request on its merits.
The failures to instruct the Applicant individual how to remove the supposed irregularity and to provide the file, were found to have constituted violations of the Applicant’s rights under art. 26 PDPA and the following.
Bulgarian data protection and the assistance granted by the regulator – the Commission – is still in a nascent state. Applications by patients for the disclosure of their medical records in particular are often treated timidly, partly because of a domestic paternalistic tradition in medical care. The sound decision of the Supreme Administrative Court is thus a welcome addition to the jurisprudence in this area.
Yoana Ivanova, an associate, and Svetlyo Ivanov, of counsel, represented the Applicant (on her own behalf and on the behalf of her infant child).

Recent work:

Stopping the improper use of insolvency proceedings

A client of our dispute resolution team (led by Kamen Shoylev and Yordan Neshkov) was recently the subject of an indirect claim by a Bulgarian bank with which this client has been engaged in a multi-stage dispute. Unusually, the bank acted through a vehicle registered in an African state, which made an unfounded claim in the tens of millions of euros against our client and sought the commencement of judicial insolvency proceedings against this client. The offshore vehicle was chosen to isolate the bank from liability and create certain evidential difficulties for our client's representation.

NBLO succeeded in terminating the insolvency proceedings, with direct loss fully awarded to our client. A second claim to recover our client's indirect losses is currently under way.

Where targeted in this way through insolvency proceedings, a company may be prevented from trading properly (e.g., by suffering restrictions on its financing or being unable to participate in public procurement).

Through our considerable experience in insolvency litigation, both entirely domestic and where there are European and cross-border elements, we are ideally placed to assist clients in resisting such attacks and recovering the real and considerable losses that may be suffered.

© New Balkans Law Office 2019