The General Assembly of the Civil and Commercial Chambers (GACCC) of the Supreme Court of Cassation (SCC) shall give answer to the following procedural question ‘Mandatory or optional is the necessary joinder of the parties of an agreement in the proceedings on a claim for annulment of the agreement filed by a third party’ (Ruling No 95 dated 05.05.2020 [1])
The interpretative case was initiated due to the existence of contradictory case law of the Trial Chambers of the SCC.
The case law is consistent and uncontroversial regarding the fact that in case of a claim with a subject of a request for declaration of invalidity of an agreement, the parties to it are in necessary joinder.
This conclusion follows from the nature of the necessary joinder of parties, which exists in the event that due to the nature of the disputed right or by order of the law, the decision must be the same for all participants in the disputed legal relationship. It is assumed that this is the case when contesting the right of one of the parties to an agreement by attacking its validity by a third party.
In this case, the disputable question is the type of necessary joinder of parties – mandatory or necessary.
Some of the Trial Chambers (see Decision No 273 dated 25.08.2014 [2] and Ruling No 632 dated 20.12.2013 [3]) accept that when a claim is submitted for nullity of an agreement to which the parties are several persons, these persons are ‘parties in mandatory joinder, because they are participants in the same substantive legal relationship and a decision declaring nullity or transferring the claim to be the common goal of all. ‘
Therefore, it can be stated that “bringing a claim by or against all others is an absolutely positive provision of a procedural precondition, without the existence of which the claim is inadmissible and for which the court follows ex officio.”
According to other panel of the Supreme Court of Cassation (see Decision No 247 dated 04.02.2019 [4]) “At the request of a third party for nullity under an agreement, legally responsible persons are all parties to the agreement. However, there is no general norm that must be set as a mandatory condition for their common procedural legitimacy. Nor can the nature of the dispute offer them compulsory participation. “
Therefore, the judges state that “In all cases of necessary joinder (mandatory or optional) the deeds of the parties in their subject are identical, as they either participate in the same legal relationship, or have identical legal status. As all the facts regarding the parties in necessary joinder are common, the legal conclusions of the court should also be the same for all parties in necessary joinder, as well as the resolution of the substantive dispute.”
The GACCC of the Supreme Court of Cassation is about to answer the question by issuing an interpretative decision, which will be binding on all courts. The draft decision was assigned to the judges of the Civil Chamber: Dimitar Dimitrov (rapporteur) and Zoya Atanasova and Nikolay Markov of the Chamber of Commerce.