Don’t wait for things to happen. Make them happen.Roy Bennett
As many of you should be aware of, the Bulgarian Parliament passed certain amendments to the residency and citizenship legislation in March 2021. This was a breath of fresh air for many candidates willing to become EU citizens. Unfortunately the new legislation didn’t come without its caveats. Worth mentioning are the controversial grandfather clauses (see also the second grandfather clause).
Today, we will focus on another issue that many Bulgarian citizenship investors are currently facing. We will give our insight and recommendation to those who want to invest as per the law, but are not “allowed” to. Sounds contra intuitive right? It certainly is.
The problem with investing under the law of March 2021
Preliminary approval by InvestBulgaria Agency (Bulgarian Investment Agency)
A foreigner who applies for a permanent residence permit under para. 1, item 6 (permanent residence by investment), makes an investment after inspection and evaluation by the Bulgarian Investment Agency of the documents submitted by him…Art. 25, para. 7 from the Law on the Foreigners
This should of course be not an obstacle to the process as the InvestBulgaria Agency’s role is to assist foreign investors in Bulgaria. Or at least, that’s the theory and the common sense.
Missing relevant amendments of the regulations to the Law on the Foreigners
After the new legislation of March 2021 was passed, the government had to issue and approve new regulations, stipulating how the preliminary approval should be processed.
The procedure for establishing the circumstances and conditions under para. 1, as well as the conditions and the order for carrying out the inspection and the assessment under para. 7 and of the preliminary approval for carrying out investments shall be determined by the regulations for application of the law.Art. 25, para. 2 from the Law on the Foreigners
So far, the relevant texts to the existing regulations have not been added, as is confirmed by the InvestBulgaria Agency. And without the required legal basis, the Agency is not in position to approve the investments.
What to do?
This is a hard question to answer straight away, so bear with us. You can basically do three things:
Wait for the legal regulations to be issued
You can wait for the government to make up its mind and issue the relevant regulations. But since the legal amendments of March 2021, more than nine months have passed. How long are you prepared to wait more? Life is short, but at least an EU passport makes it more pleasant.
Give up on the Bulgarian permanent residence and citizenship
You can of course give up and be defeated by the state bureaucracy. Your children may of course call you “loser” for your inability to provide them better future and EU citizenship.
Fight, invest and prove the bureaucrats wrong
If none of the above is an option for you, you should fight the red tape and be pro-active. We have analyzed carefully the legal framework and the current vacuum, caused by the lack of relevant governmental regulations for the investment procedure. We stress on the fact that each and every investor should carefully consider all options first. Only then, he should decide for himself what is the best way forward for him.
Our recommendation on how to invest while there are no relevant regulations to the law
LEGAL NOTICE: Our recommendations are in no way an attempt to try to convince the investment residence and citizenship candidates to act as we are suggesting. Each candidate and applicant should make his own decision on how to proceed, bearing in mind his personal circumstances and the legal norms in Bulgaria. We can not be held responsible for any consequences from the decisions and actions that may have been taken as result of our recommendations.
We believe that although the new law requires the candidates to obtain preliminary approval from the Investment Agency, failure to receive such approval, should be no obstacle to participate in the investment residence and citizenship program. This is of course only true if all of the following conditions are met:
No preliminary approval – not to be fault of the applicant
First and foremost, the lack of preliminary approval should not be a fault of the applicant. “Luckily”, in the current situation, this condition isn’t hard to meet.
As the relevant regulations to the investment residence and citizenship legislation have not been published yet, the fault is definitely on the government, not on the applicants.
The investment needs to be done – effectively
The second condition is for the investment to be effectively done. The applicant should invest in the investment product (ie ETFs) effectively by purchasing them. Showing only an intention to buy the instruments may not be sufficient. If the investment has not been purchased, it will be very difficult for the applicant to both show his ability to make the investment and to also effectively start his participation in the program.
The investment must be compliant with the conditions of the relevant legislation
The last, but probably most important condition is that the effected investment needs to be fully compliant with the conditions of the Foreigners Law. This means that even though there are no regulations yet, the investment has to be such, that it would be (pre) approved by the Investment Agency, should (or when) the regulations are in place. Bearing in mind that the conditions in the Foreigners Law are quite clear as to which investments are acceptable, this condition isn’t hard to cope with.
With all that being said, we believe you should not wait for the Bulgarian government to issue the relevant regulations on how the investment should be done. The purpose of the investment citizenship program is to attract investments into the country, as well as new qualifying citizens. The new legal regulations are in place from March 2021 and it is purely the fault of the government that no regulations exist yet.
In all cases, the investment residence and citizenship candidates have the right to apply as per the laws of 2021. The failure of the government to technically empower the candidates to invest, should not deprive them of their legal rights as per the law.
We believe that the candidates should invest ASAP. This is of course if they can meet the criteria of the law (in qualifying instruments, such as Bulgarian ETFs). Even without the preliminary approval by the Investment Agency, their investments should qualify them for the purposes of the laws, as the lack of regulations is not their fault.
After the investment is done, the applicants should also have certain important rights. Such may be the right to still participate in the investment program, even if the legislation is further changed (grandfather clauses). Another right is to obtain compensation from the state for damages. The latest is foreseen in the Bulgarian Constitution and the Law on the responsibility of the state and municipalities for damages.
The state is liable for damages caused by illegal acts or actions of its bodies and officials.Art. 7 of the Bulgarian Constitution
As a final word – act now! Do what depends on you and leave the rest on us and the LAW!