By order of the President of the Supreme Cassation Court (“SCC”) dated 07.12.2021, a new interpretative case has been initiated (case No. 4/2021) within will give answers to the following questions on which there is contradictory practice of the chambers of the SCC:
- Is a cassation proceeding admissible, in case of partial waiver under Article 233 of the Civil Procedure Code (“CPC”) of the right in dispute before the SCC, as a result of which the price of the claim is below the threshold established in Article 280 para. 3(1) CPC?
Under the CPCP, the threshold for a cassation appeal is BGN 5 000 for civil cases, respectively BGN 20 000 for commercial cases.
2. What are the legal consequences of a partial waiver of an action brought under Article 233 of the CPC in cassation proceedings in respect of the part of the disputed right which is not waived and the remaining waved part of the disputed right?
As regards to the first question referred for interpretation, there is case-law according to which, once the procedural prerequisites under Article 233 of the CPC are met, the proceedings should be dismissed in respect of the part in respect of which a waiver was made before the Cassation Court, and accordingly the judgment of the Court of Appeal shall be invalidated. Regarding the remining part, which was not waved, the proceedings are admissible (irrespective of the claim price) and the proceedings should therefore continue with adjudication on the merits.
According to these chambers, the determination of whether a case is within the jurisdiction of the SCC is made at the time at which the cassation appeal is filed and once determined, functional jurisdiction may not subsequently be waived (unless the appellant withdraws his appeal in its entirety).
However, according to other SCC panels, the court should consider the partial waiver, insofar as the party is entitled to waive its claim at any phase of the proceedings.
When in as a result of this procedural action, the price of the claim falls below the threshold laid down in Article 280(3)(1) of the CPC, the court shall consider the inadmissibility of the proceedings and the entry into force of the appeal judgment.
It is also stated that partial waiver of an action under Article 233 of the CPC before the SCC is inadmissible, insofar as such an action does not constitute a waiver of the disputed right within the meaning of Article 233 of the CPC, but an amendment of the claim under Article 214 para 1 of the CPC – reduction of the amount of the claim, which procedurally action may validly be taken only before the first instance.
With regards to the different answer to the first question posed for interpretation, the answers of the different SCC chambers to the second question differ.
The supreme judges supporting the first opinion, terminate the proceeding regarding the part of the disputed right, which has been waived by the party, invalidate the court act of the previous instance court and rule on the remaining part of the claim, which has not been waived by the claimant.
On the other hand, the SCC panels supporting the second opinion, terminate the whole proceedings and invalidate the court act of the previous instance court in full, due to the partial waiver of the claim, on one hand, and the inadmissibility of the proceeding regarding the remaining non-waved part of the claim as result of the falling below the statutory threshold for a cassation appeal.
Our team will continue to monitor the development of the interpretative case, in which the Supreme Cassation Court will provide answers to two significant procedural questions.