Chapter 7

Bulgaria

Borislav Boyanov amp Co Peler Pelrov

1 National Competition Bodies

11 Which authorities are charged with enforcing competition laws in Bulgaria If more than one please describe the division of responsibilities between the different authorities

The Commi ssion On Prolec tion of Com pet ilion (the Commission) is Ihe nali o fl nl 3111horny o r the Repu blic o f Bulga ria responsible for

the enforcement o f Bulgarian natiOnA l and Community competit ion

law The Commiss io n ( I) eSlnbJi shes infringements unde r the

Protec ti on or Competition Act (P romulgated State Gazeue Issue

102 o f 28 112008) as we ll as unde r Article 81 a nd A rticle 82 ofL he

EC Treaty (2) im poses sanctions as provided fo r III Protec tion of

Competition ACt (3) establ ishes that no infrin geme nt under the

PrOtection ofCompe lltion Act has been committed o r there are no

grounds ror taking ac tion ror committed inrringernent unde r A rtic le

81 and A nicle 82 or the EC Trea ty (4) cooperates with the

Euro pean Co mmission a nd the o the r nat ional compet iti o n

autho riies or ihe Member States o r the EU in accordance w ith

Reg ulati on (EC ) No 112003 (5) issues the authorisations as

rrovided ro r in Protectio n o f Competition Act (6) proposes to the

competent State a utho rities a nd loca l go e rnmcnt bodies to revoke

or amend admi tl istrative acts issued by them that ha ve or may lead

to the prevent ion restricti on Or di stort io n of competition (7)

imposes interim measures in the cases provided ror Protec tio n o f

Co mpetition Aet (8) approves th e undenaking or comnl itme lllS by

undertakings or imposes meas ures to restore compe titi o n in respect

o r undertakin gs whose hehaviour is subjec t to inves ti gation ro r

prohibited agreement s dec is ions or conce rt ed prac ti ces or ror abu se

of dominance und er the Protect ion o r Competitio n Act andor under

Article RI and Article 82 or the EC TrealY as well as the remed ies

tOr the preservalion or competillon (9) orders tenuination o r the

inrrlngcments inc ludin g by imposing the appropriate be hav io ural

andor struChtral remedies to resto re compe tition ( 10) conducts

sector inqu iries o f the compcLiti ve e nvironme nt (J j ) rule~ o n any

other requ es ts rdated to Proiection o f Com pe tition Act ( 12)

inte racts wi th other sta te authoriti es including the a uthonties o r the

exeeuti ve bra nch as we ll as wilh local gove rnmen t auth orities

ins titutio ns and non- govenlille nta t o rgani sations by parliciplling in

dra Ctlng legis lative act s ex pressing opInions o n dra ft a nd eX Istin g

legislati ve and general admi ni Sl ral ivc acts exchanging into rmation

and other ro rlll s of cooperatio n (13) proposes and o rga nises

Initiati es relined to rai s ing ltlmiddotare ness or the rnl es of competiti o n

(14) adopts the Rules o f organi satio n as we ll as an y other ac ts as

prov id ed fo r Protection o f Co mpetitio n Act and (15) keeps an

e lec tronic regi s tcr o rthe adopLed acts

12 P rovide details about any bodies having responsibility for enforcing competition laws in retation to specific sectors

The Commission IS the o nl y aUlhoriry rcsponslbl e for enro rc ing

cOlllpetition laws ac w s a lt sectors At the sa me time cen ain secto ral

regulators have poers middotInch allow them to interve ne acti vely to

preserve and enhance competition In the Ir secto r Most notable among

these is the Commission on Regu lat ion or Communicat ions whi ch

has powers whi ch arc even wider rangin g than the Comm iss io n a nd

in clude price regtlmion approva l o r ge neral tenns and conditions a~

we ll as conducting sec tor analyses in the cOlTlllllmi r3t io ns sec tor and

identifying commun ications operato rs enjoying signi licant market

power Thi s does no t excl ude the comnmnicatio ns sector fro m the

scope o r the Comm issions competences and it has been very ltIc ti ve

in imervelling panicularly o n dominance issues

13 How doesdo the competition authorityauthorities determine which cases to investigate and which of those to prioritise in Bulga ria

In ltIccord nnce with ArtICle 38 or thc Protection of Compelltion Act

(which cont ain s the grounds ror inilia ting proceedings befo re the

Commiss ion) the Commiss ion is ob liged to initiate a proceed ing if

there are gro unds to do so In prac tice thi s lllcans that the CommI SSio n

will Initiale an investigat ion whenever a fOnlla l comp la illl reque~t i n g

a rroceeding is submll1ed to it More discretion is excrcised hen in

the absence o r a rormal compla int the Comm ission assesses whether

to initi ate an investigation on its own mot ion

2 Substantive Competition Law Provisions

21 Please set out the substantjve competition law provisions which the competition authorities enforce inc luding any releva nt criminal provis ions

T he Protec ti on or Com pet it io n Ac contains the subs la ntive

competIti on law prov is io ns in Bu lgaria and aims 10 ensure prOleeLlon

a nd condiLions ror pro1l10 Li on of competition and free economic

initiative [n pan ic nlar tile Protection o f Competiti on Act regulates

protec tion ngainst agreements deci sions a nd cO llce lied prac tices

abuse or mono po li st ic a nd dominant positi on and a ny other acts o r

ac tio ns th at lIlay result in preventio n reslfic tio n or distol11 oll o f

competition in the COlllltry a ndor affec t trade betee n the Member

States o r the EU as we ll as agltl inst nnfa ir compe l it ion The

Commiss ion al so enrorces nnd administers th e nJ les 0 11 co ntrol on

concentrat ions bet een nnd cnaktngs As a nati onal compet ition

authoriry the Commiss ion also enforces Ihe prov is io ns o f Aliicle 81

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and Article 82 orille EC Treaty wilhin the framework or Regulation

(EC) No 12003 of the Council of 16 December 2002 on Lhe implementation or the rules or competilion laid dovn in Article 81

and Article 82 orlhe EC Treaty (Regulation l200J)

There are no criminal provisions in respect or anti-tTlISI violations

in Bulgaria

22 Are there any provisions which apply to specific sectors only If so please provide details

The only sec lor which can be said 10 have a specific set ofprovisiollS

on protection of competition is the communications sector In line with the new European communications regulatory rramework the

Commission on Regulation of Communic8lions is invested with

sigmficant plt)vers to enhance and protect competition particularly in respect of operators enjoying signiflcalH market power

3 I nitiation of Investigations

3 1 Is it possible for parties to approach the competition authorities to obtain prior approval of a proposed agreementcourse of action

At this time there are no procedural possibilllies for the parties to

approach the Commission and obtain prior approval of a proposed agreement or course of action

nle Commission will sometimes Issue infonnal guidance or respond

to a notification of an agreement or course of action by reminding thc relevant legislative rules Lhat it considers relevant 10 the ease

32 Is there a formal procedure for complaints to be made to the competition authorities 1f so please provide details

Proceedings before the Commission may be initiated on a request by a eomplUlnant who claims to be injured by a compelition Imv

violatIOn

A standard complainL form has been approved by the Commission and the minimum requirements to the content and at13chments of

the complaint are set by the law Thcse lnclude

the nameiitle and particulars of the registrationpersonal bull Identification number of the applicant and the pcrson ag8inst whom the complltllllt has been brought

bull the addre~slregislered office and business address of the applicant and of the person against whom the complaint has been brought

bull description of the clrcumstanees upon vhlch the eomplaint is based and the alleged infringement

detltlils of the form of protection sought bull bull cvidcnce III support of the applieation

signature of lhe person who files the applicalion or of itsbull authorised representative and

bull receipt for the state fees paid

The complaint should be submilled in Bulgarian and any

accompanying evidence should be translated into Bulgarian

33 What proportion of investig~tions occurs as a result of a third party complaint and what proportion occurs as a result of the competition authoritys own investigations

The Commission does not issuc official statistics based on this

specific cnterion Nevertheless in the Commissions Annual

reports it is reported Lhat for the year 2008 the Commission

launched 9 proceedings on possible in fringemelHs of the prohibited agreemellls rules orthe fonner Protection ofCornpeLiLion Act -7 of

these proceedings were initiated on written applications of the persons whose interests have been affected or threatened by the

infringement and 2 of them were Initiated on the Commissions own initiative

4 Procedures Including Powers of Investigation

41 Please summarise the key stages In the lnvestigation process that is from its commencement to a decision being reached providing an indicative time line if possible

The Investigation of the Commission may be initiated at ils own motion or on a complaint of an interested party affected by the claimed violation (ordinarily a competitor) Tht invcstigation may

also be initiated on the basis of a leniency application or on a

request by the public prosecutor The Commission will initiale proceedings also in case it is requested to do so under Article 20 or

Article 22 of Regulation 112003

Where thc proceedings arc initiated upon a compl8int of an

interested P8rty affected by the violation the stalemelH of complaint will go through a pbase of preliminary control within 7shy

10 days after it is filed It is not unusual tilat during this phase lhe Commission will require additional information or documents to

consider the complaint admissible Once the additional information and documents are presented or the complaint is otherwise

considered complete the Chamnan of the Commission will mitiate

the proeeedings and appoint a reporting member as well as a workmg group of case handlers

Where Ihe proceedings are initiated at the Commissions own

motion they are usually preceded by preliminary intemal research assigned by the Chairman to offieers of the respective internal

division of the Commission The Commlssions interest may be triggered by vritten or verbal infom13tion received from an injured

party which does not constitUle a formed complaint by information

published in the media or data obtaincd from other sources There IS no time line for Stich research The preliminary researeh will end with an internal repon addressed to the Commission

recommending opening or not opening procecdings in the case

The proceedings are opened with a decision of the full panel of the Commission

There IS no deadline for the completion of the investigation on the

case

Once the case handlers consider Lhat tbey have collected sufficient evidence and information they prepare a report of their findings to the reporting member of the Commission The reporting member

informs the Chalfman who should schedule a closed session of the

Commission withlll 14 days At the elosed session the Commission may dismiSS he case retum lhe case to the ease handlers with

instructions on the collection of additional information and evidence or approve a statement of objections bltlsed on the

findings comained in the report

The statement of objeetions is notified to tbe pltlrties to the

proceedings including the defendanLis and any interested partics such as the complainant The statement should give to them a

period not shorter than 30 days in which to present their own objections to the statement as well notify them thltlt within this

period they arc allowed to have access to the file

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Upon submilting their response La the statement of objections the part ies are o bliged to present all ev ide nee in their possession in

surro rt of the ir position The defe nda m lIlay within the period

allowed to res pond to the statement of o bj ec tions also olTer 10

undenake com mitments Should sueh eommitments be approved w ith a dec is ion or lhe Commission it will terminate th e

infringement proceedings without find ing a vio lation

In nil other cases the Chairman will schedule a hea ring wuh the

partie ipatlon o f the parties not earlie r than 14 days following lhe expirati on of the deadl ine for submiss ion of responses (0 the

sta tement o f objections

Fo ll owing the hearing the Commiss ion iOllOilllg disCLIssion in a c losed sess ion will pass a definitive dee is ion which eiLher ends Lhe

admini slrativc proceedings before th e Co mmission or by a rulin g middot

broaden the score of the rroceedings in respecL of new claimed

vio lations or re turn the fi le Lo the ease handlers for additi onal

in vesti ga tion

4 2 Can the competition authority require parties which have information relevant to its investigation to produce information andor docume nts

A II natural pcrsons and legal e ntiti es includlllg undertak in gs

assoc iations of undertakin gs S(ille and local aULhoriti es nOll

governmental organisations are o bliged Lo cooperate with th e

Commission whcn it exe rcises it s powers under the ProteC Li on o f

COlllpeti lion Act Persons rrom whom cooperation IS requested

( including the presentation o f statemenis and o ther eVidence)

canno t rder to manurac turing comme rcial o r o ther protected secret

10 object to the prese nta tion o r the requested in fo rma l ion

43 Does the competition authority have power to enter the premises (both business and otherwise) of parties implicated in an investigation If so please describe those powers and the extent if any of the involvement of national courts in the exercise of those powers

The Commission has Ihe power to visiL thc sites 01 the companies

or associa tions under in vesti gation for a suspected in fringement o r

the Protection o r Competition Aet ( ine ludin g hath antimiddottrust And

merger control rrov isions) o r Artic les 8 1 a nd 82 o r the EC Trea ty

without prior notice A n inspection requires howeve r an

authorisaLion by a judge from thc Solra Admini strati ve Court

The Commission m3y

I cnter any premises means of Lransport and ot her 10cltI Lions used by th e unde rtakings find associati ons o r ulldenakin gs

2 exa mine all books and reeords related to the bus iness of the undenakings o r assoc iaLions or underLakin gs irrespective or Ihe medium on whic h they are stored

3 se ize or obtain info rmation in hard di gital or e lectronic copy copies or o r ex tracts rrom suc h books a nd reco rd s inespeeli ve of the medium O il w hic h they a re s tored or where thi s is imposs ible seize the orig inals as we ll as a ny OLher mate ri a l ev idence

4 se ize or obLa in electronic digita l a nd rorensic evidenee in c luding tra rtrc data rrom all types of com pule r data can iers co mputer systems and oLher info rma ti on canmiddotiers as well as se i7e the devices for tran smi ss ion o rinronnstion

s receivc access to all Lypes or inrormAti on ca rri ers including inro rm ati on sto red on serve rs acees sible by co mputer syste ms o r o ther means located in Ihe in spee ted rremises

6 sea l for a cen a in period o r time any pre mises meall s o f Ira nsport and othcr sites used by the inspected undertakings or assoc iations o r undertakings as we ll as eomme reial o r

accounting books o r ot ll(r info rm ati on carriers and

7 ta ke down oral slalements o r a ny re presentati ve o r member of th e management and sta fr or the underlakings Of assoc iaLions of undena kings on ci reumstanc es related to the subj ect matter and purpose or Lh e in spec tion

Any doc ument or evidence found may be se ized it it contain~ data

raisi ng well-rounded doulm o r oth er infringements under th e

Protecti on or Competition Act or under Article 81 or Article 82 o r

the EC Treafy

Fai lure to cooperate ma y leltld to fines Fi nes ca n 101 in s tan ce be

imposed ir the in vestigated unde nak ing is found guilty o r an y o r th e

10 1i0wlll g

bull [n eo mplete produc ti on o f records ( ie the produc ti on o f books and records in ineolnplete rorm Ihe rfovision of incorrect oral inro rm a lion a fa ilure to rro vid c clea r ex planfltions leading LO relevant documents being overlooked removal o r re levant material ctc)

bull IneompJete access La 3 companys premises

bull A n unjusti fied reru sal to comrly with a request ro r o ra l ex planation

bull Dest ruct ion o r ev ide nce durin g the in vestigati on

bull Rerusa l to cooperate w ith inspeelOrs

Where a party ha s impeded the collec tion o r info rmation in respect

of ce rtain racts the Co mmiss ion is entitled to assume tha i these

fac ts have been proven a nd bnsc lIS decision upon the m

44 Does the competition authority have the power to undertake interviews with the parties in the course of searches being undertaken or otherwise

During an inspec tion the Commiss ion m y ta ke down o ra l

statement s o r any representati ve or member or the managemenL and

sta fT or the unde rta kings o r assoc iations o r unde rta kings whose

premises are inspec ted on c irc umstances re lated to Ihe subject

matter Illd purpose or the inspection

The reportlll g member in charge or the investiga tion a nd the cnsc

handlers hsve the ge nera l power 10 take state mcntS wi thin th e

framework or the ili ves Ligati o n A proLocol should be drawn up for

the sLaLements Laken and be s igned by the person Ihat has gien the

stltemenl and by the case handlers that conducted the inte rvi ew

45 Can the competition authorities remove originalcopy documents as the result 01 a search being undertaken

The Commission offi~ers in princ irle are requi red to ta ke onl y copies

orthe docume nts round dllrin g an inspection O rigi na ls mny be taken

only where the taking o fa copy is not rossibl e Bot h th e eop ies and

the originalS taken muSl be returned upon the enLI) or the decision of

the Commission into e frect Upon reque st by the re lemL

undenaking or the assoc iAtion orundenakings rrom which they were

se ized the Commission may return the originals or the documents

even be rore the eoming oCthe decision orlhe Comm iss ion inlO elTec

The Comm iss ion is ob liged to do so whe re Ih e exereise of ri ghts

under lhe doc uments is linked to their phys ica l possessioll

46 Can the competition authorities take electronic copies of data held on the computer systems at the inspected prem iseSoffmiddotsite

The Co rnmi ssion may Lake electronic eopies o r doc ume nts digital

eleclro lli e and Ibrensie e idenee seized dUflllg an in spection in Lhe

illspected pre mises

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47 Does the competition authority have any other investigative powers including surveillance powers

Outside on-site inspections the general investigative powers of the

Commission include

bull to request information and corporeal wrillen digital and electronic evidence irrespective of the carrier on which they

are preserved

bull LO take written and oral statements

bull to assign the preparation of expert reports to outside experts and

bull to request cooperation and information form the national competition authorities of other Membcr States of the European Union as well as from the European Commission

The Commission does not have powers of surveillance

48 What opportunity does the party accused of antimiddot competitive conduct have to hear the case against it and to submit its response

The accused party is entitled [0 receive a Statement of objections

v-here the Commission hy a ruling has accepted that the claims of

a committed infringement are likely credible and substantiated

Within a period of not less than 30 days (set in the statement of

objections) the accused party will be enlllied to submit a resronse

to the statement of obJections In addition during this rime the

accused party will be entitled to access the case file Finally lhe

accllsed party will be entitled to be heard at the hearing conducted

by the Commission following the expiration of thc pcriod for

submission of responses to the statement of objections

In cases whcre the proceedings were initiated upon a complaint by

an interested pal1y it is standard practicc of the Commission to

presem the accused pany with [) copy or the complaint at the

begllming of the procecdings and request its position Although

previously tbe Commission presented also its own decision on the

initiation of proceedings where the proceedings v-ere initiated at its

ov-n motion recently i[ has discontinued this practice and presents

only thc legal but llot tbe factual grounds for the initiation of the

proceedings to the accused in the beginning of the proceedings

49 How are the rights of the defence respected throughout the investigation

Within the general rmmework of thc nght of defencc in

administrative proceedings the parties throughout an investigation

are entitled to be represented by an attortley 8t law Correspondence

between an attorney and its client is legally privileged and may not be

seized or used as evidencc The righl of defence of the parties is

guaranteed by way of their righllo receive a statement of oQjections

v-here the Commission considers that a claim for a violation is likely

justificd to receive access to the file (excluding confidential

infonnation submitled by the other parties) to be heard by the

Commission and to submit evidcnce in their defence throughout the

investigation In general the Commission is not friendly to requests

by the pllrties to collect evidence itself for example in cases v-here

the relevant party is unable to obtain such evidcnce independently

Finally the defendant is entitled 10 appeal the various acts of the

Commission as furtber explained in Section 11 below

410 What rights do complainants have during an investigation

In thc first place in almost all cases (v-ith thc exceptIOn of cases where the complainant is unable to prove its legal interest in the

investigation or has not rulrilled the minimum requirements ortbe

law 10 the content of the complaint and ils attachments) the

Commission will initiate a proceeding upon a complaint submitLed by an interested party

The complainant has also the right 10 receive the statement of

objections prepared by the Commission and submit ils res[Jonse as

well as supporting evidence The complainant has the right to be

heard along with the defendant

Finally the complainant has the right to appeal the various acls of

the Commission as further explaiued in Section II below

411 What rights if any do third parties lother than the complainant and alleged infringers) have in relation to an investigation

Third parties which have a legitimate interest may join the

proceedings as an interested party The Commission may allow

such joining based on a motivated application from the relevant

third party After acceding to the proceedings lhe interested rarties

will have the same powers as the complainant and the defendant

depending on their particular legal interest

Third parties which have not been constiwted as interesled parties

in the proceedings do have the right to appeal the Commissions

decisions within 14 days after the relevant decision is published in

the electronic register accessible through the v-eb site of the

Commission [t has to be noted though that the Supreme

Administrative Court the Judicial review instance for the decisions

of the Commission has set a high standard oflegal interest to aHow

an apreal ofa decision by a party which has not been a party to the

proceedings before the Commission

5 Interim Measures

51 In the case of a suspected competition infringement does the competition authority have powers in relation to interim measures 1f so please describe

If during an investigation of prohibited agreements decisions and

concerted praetiees or during an investigation of abuse of

monopoly or dominant position or of infringements of Article 81

and Article 82 of the EC Treaty there is sulTicient evidence of an

infringcmcnt In urgent cases where there is a nsk of serious and

irreparable damage to compelition the Commission may (at its own

initiative or on request of the persons whose interests are affected or

threatened by the infringement) order the immediate termination oj

the practice by the undertaking or the assoclation of undertakings

or impose other necessary measures taking into account the

objectives of Protection of Competition Act Thc Commission may

not impose measures which are of the competence of other

authorities and are stipulated in Olher Acts The interim measures

may be ordered al allY time during the course of the proceedings

The Commission imposes the interim measures with a reasoned

ruling stating the objectives of the Imposed measure and giving the

grounds for its urgeney If the ruling is appealed the appeal does

not suspend the 8pplication of the interim measure

The initial term of effect of thc interim mcasurcs can be up to 3

months as of the time they are Qrdered Ifnecessary the time limit

may be extended The interim measures may have efTeet until the

adoption of the Commissions decision on the merits The Commission may revoke the interim measure also before expiry of

the tenn of its eflect where the illegal practice is tcnninated and the damage to competition is prevented

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6 Time limits

61 Are there any time limits which restrict the competition authoritys ability to bring enforcement proceedings andor impose sanctions

The infringements under the PrOteetion of Compel ilion Act vill not

be prosecuted if the period oflllTlil8tion h8S expired wlHeh is

bull J years - lor violations related to failure La provide

infomlation or cooperate with inspections

bull 5 years - rOT all othcr violations

For continued violations the period of limitallon will start as or the

moment the violation has been discontinued The period or

limitation is interrupted with the initiation of procecdings by thc

Commission or by a competition authority or a Member State or by

the European COlllmission in respect or the violation During the

proeeedings the period oJlirnitation is suspended

7 Co-operation

71 Does the competition authority in Bulgaria belong to a supra-national competition network If so please provide details

In relation to the membership or Bulgaria in the EU the

Commission as a national competition authority P311icipates in thc

enforcement of the ComlTlunity competition rules in cooperation

vith the European Commission and the national eompetition

authollties of the other Member States This cooperation takes

plflce mainly in the framework or thc Europcan Compctition

Nelwork (ECN) The Network plays s key role in the allocation or

work among the national authorities the EC and the eoul1s and

ensures the coherenl application of EU legislation The ECN

membership IS related to constant exchange or inrormation with

counterparts which facilitatcs lhe elicitalion and maintenance or

emcient comretition throughout the EU

The Commission is a member of the International Competition

Network (ICN) ICN deals with issues in thc field or antitrust

legislation and competition policy The Nel-lork is aimed at

strcngthening the cooperation between the competition authorities

and achieving eonvergenee betveen legislation and law

enforccment practices The COlllmission became a liaison

agency in thc Support Systcm crcated in August 2008

72 For what purposes if any can any information received by the competition authority from such networks be used in national competition law enforcement

Thc ECN provides the M (mber State national competition

authoritIes with the opportunity to exchange inrormation which is

an important prerequisite for ensuring a uni fied and coherent

enforcement or 1egislalion Information obtained from other

comretition authonties may be used in the course of the

investigation but only within the rramework or Rcgulation 112003

Correspondence between the Commission and the European

COlllmission or national competition authorities of other Member

States cannot be dIsclosed to the parties upon their access to the file

8 Leniency

8 1 Does the competition authority in Bulgaria operate a leniency programme If so please provide details

The COTllmission has adopted a leniency programme allowing a parliciranL in a secret C[)ftc] ~ hich cOlTles forward with information

aboulthe infringement [Q receive illllllunity or significant reduction

or sanctions 10 be Imrosed by the CommlsSlon

Thc rollOoing are the criterifl that an undertaking should answer to

benefit rrom full immunity from sanctions

I bull berore all other particIpants 111 the secret cartel the undertaking submits evidence that is sufficient to allow the Commission to receive a coun order ror fI dawn raId rrovided that at the tIme of the application the CommIssIon did not have sueh evidence

OR

bull berore all other particirants the undertaking submits eVIdence that is sulTicient to prove the alleged orrence and at the time or the flpplication the Commission has not granted conditional immunity rrom sanctions to another undcrtaking for the same 011ense and the CommIsSion has not had sufficient evidence to prove the alleged onense

bull by the time or submission the undertaking has terminated its participation In thc cartel

bull the undertaking has nOt and does not coerce other underlflkings to participate in the alleged cmtel

bull the undertaking elTectivey aids the Commission during the whole investigation rroeedure and provides a1l evidence and information available to it

bull beforc the submission of ils application the undertaking has not dcstroycd OT rorgcd cvidcnce and

bull berore the submISSIon or its arplication lhe undertaking has not disclosed ils plan to submil fin application neilher Its eontent exeeptto other authoritIes orthe ECN

I The first 2 criteria are alternfltive and each or them is cumulative

with the rcmaining fivc critcria

The follOving are the critena that an undertaking should answer to

benefit rrom a reduction in fines

bull where the undertaking voluntarily submits evidence during thc invcsllgation vhich adds substantial value to evidence alrcady collectcd

bull the undertaking has terminated its particiratioll in the cartel prior to the submission of evidence

bull berore the submiSSIOn or its applicatIon the undcrlflking has not destroyed or rorged evidence and

bull before the submission or it application the undertaking has not disclosed its plan to submit an arrlication nellher its content except to other authorities or the ECN

The first eligible undcrtaking will qualify ror a reduction in the fine

of between 30 to 50 lhe second between 20 to 30 and subsequent

applications will qualify for fI reduction or between 10-20

9 Decisions and Penalties

91 What final decisions are available to the competition authority in relation to the alleged anti-competitive conduct

At the end of the proceedings the Commission will adopt a final

decision whereby it (I) orders the initwtion of an in-depth

investigation (2) establishes the infi-ingemem committed and the

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infringer (3) imposes peeun iary sanctions periodic sanetions andlor

fines (4) exempts from sanction o r reduces the amOum of Ihe

sa nction in eompliance wilh its leniency programme (5) establishes

thai no In fringemen t has been comillilled or that there is no ground

for laking ae tions for commilled infringtmenL under Arliele 81 find

Arti c le 82 of the EC Treaty (6) te rm mates the proeeedings (7)

app roves commitme nt s undertak en and de lines the period for the ir

implementatio n (8) rules that the respecti ve deci sion 0 11 bloe k

exemption shall not appl y to the speeific Clt1fgte and spec ify a time

limil within whie h the pa llies must bring tbeir agreeme nt into

compliance wilh the Protection of Compet ition Act o r lenninate it

(9) withdraws the application of 110 EU Regulmi on on block

exe mpti on from th~ pro hibition o f Arti cle 81 paragraph (I ) of the

EC Treaty in case thm the condition s under Article 29 of Regul ation

)2003 are present an d specifies ltI time limit within which the panies

have to bring Iheir agreement imo compliance with A rticle 8 1 paragraph (3) of the EC Trelttty or terminale it and (1 0) o rders the

tenniuat io u of infringeme nts IncludIng by imposing appropriate

beha vio ural andor s tl1le tura l measures 10 restore compelllloll

9 2 What sanctions for competition law breaches on companies andor individuals are available in your jurisdiction

The sa nctio ns depend a u the seriousness of the infringe ment that

the llOdertaking commilted as well s o n the fact s if there are ltln y

aggra vating orland mitigat in g circumstance s if th ere is a possibi lil y

Iht company re-accompli sht s the sa me InfringemenL etc The

Commissio n imposes a pecuniary sanctio n th e nmOllnt of which can

reach 10 of the annua l tumover of the in fringing unde rtak ings In

determining the amount o f the pt(lI niary sa ncti on the gnwi ty and

duratio n o f the infringement will be taken into accoun t as well as

thc c irc umstances miti gating o r aggravating the liltlbili ty The exaCI

am Ollnl of the sa nction is de te rmined III co mpliance with a

In ethodologyadopted by the Commission

Ind iv idual s who have assisted ill the commitment of in fringe me nts

of the provis ions of the PrOlcc tion of Compelil io n Act wi ll be liable

to a fine o f BGN sao 10 BGN 50000

93 What sanctions if any can be imposed by the competition authority on companies andor individuals for nonshycooperationinterference with the investigation

When an undc rlaking or an associa tio n fails to compl y w ith the

obligalion for coopenllion or fai ls to furni sh complele aec urate

true and not misl eading info rmati on or impedes an in spection under

Art 50 o f the Pro tec ti on of Com pet ilion Act lhe Commission mny

Impose a pec unia ry sa ncti on for lip to 1 of the turnover o f the

unde rtakin g or associatio n

Periodic pee unia ry So1ncliol1s to the mno unl o f up to 1 o f the

average daily tumovtr fo r Ihc preceding financ ial year for each da y

ot the vio lation may be lin posed for cO lltlnuing Ihe vio lntion

Persons who fail 10 submit in time the ev idcncc requested or fail to

supply complete accurate tllI s tworihy and nOI mi s leadin g

information will be liable to a flOe of BG N SOO10 BGN 25000

10 Commitments

101 Is the competition authority in Bulgaria empowered to accept commitments from the parties in the event of a suspected competition law infringement

The delcncLnnt III the proceedings befo re the Commiss ion may

withi n Ihe period for submiuing o f li S responSI 10 the st1temelll o f

obj ections of the Co mmission propose to underta kc commitme nls

with the aim o f terminating lh conduee in ICspee l of whic h the

proeeedings wert initiated

The Commi ss ion may approve these commitments by a decision

in sueh cases the Co mmissio n will terminate the proceedin gs

with out esta blishing an infringemlnt eo ncluding Ihal there are no

longer grounds to eo ntinue the procedings Tn it s decision the

Commiss ion m y presc ribe the period within which Ihe

commitments sha ll be effective

102 In what circumstances can such commitments be accepted by the competition authority

Comtnilnlents can be unde rl ake u in all proceedings for the

in ve~tigalioll of vio lations relaled to abuse of dominance andor

proh ibited agreements deci s ions o r conc erted pmclices e(cept to

remedy severe iolatioll s As severe are considered those

io l1I ions which may a iTect cons idcrabl y and on a las ting basis the

eompetiti ve env ironmen t in respect of a s ignificltlnl pan of the

nati onal market

103 What impact do such commitments have on the investigation

Where commitmen ts are accepled by the Cou1nli ss ion the

Coml11iss ion must lerminate the proceedings withoUi finding a

vio latio n However if Ihe decision to accept com mitments is no t

(o mplied w ith th e Co mmission may open new proceedings to lhe

ex tenl that such non-compliance represents a separate v iolati o n o f

tltc Protection o f Competiti o n Ac t

11 Appeals

111 During an investigation can a party which is concerned by a decision act or omission of the competition authority appeal to another body If so please provide details of the relevant appeal body and the appeal process including the rules on standing possible grounds for appeal and any time limits

In general intcri m rlilings of the CommI ss io n iss lled withi n Ihe

proceedi ngs may not be appeOllcd se parately fro m the fmal act of lhe

proceedlllgs_ Except ions to thi s rule inclllde the fo llowing Interim

ac ts

bull rulings of the Commi ss ion impos ing inlenm measures

bull rulin gs of th c Commissio n orde ring U1C su-pension o f proceedings

bull ruli ngs of the So fia Admini strative Court ltluthori s ing and inspection by the CommisslOn at th e premises o f Ihc respec ti vc underlaking o r associalio n and

bull n1lings o f tbe Comm iss ion to ovelTuie a party s req uest for confidentiality o f data and docllmems

The ahove rul ings of the Commiss io n can be appealed be fore a

three mem ber pane l o f the Supreme Adminisuati ve Court sitting as

a s ing le instanee wilhin 7 days orlhe relevant pllrty being not di ed

The rulings of lhe Sofia Admini s trative Court a uthorising and

inspection by thc Commiss ion can be appealed within Ihree days of

the rcl evnnt party be ing notilied before th e S upreme

AdminI strative Court aC lin g in a panel o f three members In eac h

case the judgment of the Supreme Adminis(rati ve COllrt is fina l

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112 Once a final infringement decision andor a remedies decision has been made by the competition authority can a party which is concerned by the decision appeal to another body If so please provide details of the re levant appeal body and the appeal process including the rules on standing possible grounds for appeal and any time limits

The decision o f the Commiss ion al the end o r lhe proceed ings can be appealed by the parties to the proceedings as well as by interesled tlurd parties Interested third panies inelude any person

undertaking or assoc iation whose interesls may be affecled by an inrringement o r the Protecl ion of Competiti on Act The appeal

should he addressed 10 Ihe Supreme Administrati ve Cou rt and

should be sublnilled within 14 da ys of the day on which the relevimt

pa rt y to the proceed in gs has been no tified and in respcc t of third

parties - as of the day in which the deCision is published In the

e lectronic register mAintained by the Commission which is

accessible through its web s ite

The grounds for appeal of th e Commiss ion 5 deci sions can be

bull lack oj competence

bull non-compliance wiLh the required form se t by the law

bull material breach of the ru le s of administrative procedure

bull contravenLion of the prov isions of substanli ve law and

bull non-conformilY wiLh the objecti ves or the la w

The deeision of the three me mbe r pa lle l o f the Sup reme

Ad ministrati ve Coun on its part can be s llbjec t to cassarion a ppea l

on one or more of lhe following grounds

bull nullily

bull inadmissibility and

bull illega lity - due LO vio lation o r substami ve Iltl w or malerial v io lation o f judicial procedure rul es or lock of suo-c ient reasoning of the decision

The Supreme Administrati ve court silting in a three member panel

may

bull deelare the Commissions decision null and void (e g in case of lac k of competence)

bull an nul the Commissions decision in whol e or in part

amend the Commissions dee is ion or bull bull uphold the deciSion and reject the appeal

Wh en the Supreme Administrative Court deelares the decis ion null

and vnid or annuls it in whole or in part it should rule on the

substanee of the ease unless this is nOI poss ible due to the matte r

being subject to the discretionary judgmenl o f the COlllmission or

whemiddotre duc to the naLure of the matler the court is unable to pass a

decision on Ihe substance In these eases the court must return the

case to the Commiss ion wilh ob li gatory instructions on Ihe

applkation of the law

The Supreme Admini strali ve Court sining as a cassation instance in

a li ve member panel when re viewing the decision of the three

member pane l may

bull declare the deeis ion of the three member panel invalid

bull declare the dec is ion oft ite three member panel inadmiss ible

annul Ihe deeision of the three member panel in whole or IIIbull pan or

bull uphold th e decision and rejeet the appeal

Where the ti ve member panel of the Supreme Administrative Co urt

has annulled the deci sion of the lower inslance it has to nile on lhe

substance If however the annulment has been due Lo material

procedural vio laLinns or new facLs nccd to he established which

cannoL be eSlob li shed by the eo llection orwritten evidence alone or

where the COLIrt has declared the decision of (he lower instanee

in va lid iL musl relum the case to (he lower instance siltinR in II

three member panel co mprised of diITerentludges with mandatory

instructions on the applica tion o r the law Where the fi ve me mber

panel o r the Supre me Admini stra li vpound Court has declared the

decislOll of the lower insta nce inadmiss ible It has lhe options

(depending on Ihe reasons 10 1 inadmiss ibilit y) to te rminate thc

proceedings o r re turn lhpound case for a new remiddotie w to thc lower

instance o r send Ihe case to the eompcteln eourt or lhe competent

aUlhority

12 Wider Judicial Scrutiny

121 What wider involvement if any do national judicial bodies have in the competition enforcement procedure (for example do they have a rev iew role or is their agreement needed to implement the competitionanti-trust sanctions)

The involvemenl of Ihe Bulgarian admin istrative courts in Ihe

eompeliLion enforcement procedure is limited to Iheir judicia l

re view role Actual enforccment or a lille is conduc ted by the

publiC enforcemen t age nc y which enfo rces all public dues

including rmes taxes duties etc

122 What input if any can the national andor international competitionanti-trust enforcement bodies have in competltlon actions before the national courts

The Commission is A party to the proceedings befo re Ihe Supreme

Administrati ve Court ror judicial review of il s dec is ions and

ru lmgs As such the Commission has equal rights wilh all o ther

panies to these proceedings to present evidence plead and appeal

the decisions or the court InternaLiona l compct iti on anti-trust

enforcement bodies at this lime are not en titled to Join thejudic ia l

review procecdings before the Supreme Admini strative Court

13 Private Enforcement

131 Can third parties bring private claims to enforce competition law in the national courts If so please provide details

Pri va le claims to enforce compelition law in the Bulgarian c ivil

Cour1 Scall be brought either as indi vidual actions o r as class aCli o ll S

Indi vidua l ac tions for damages as a result ofcompeti I ion vio lalions

Would rega rd these viola lions as torts and absent any spec ial

provision would be subject 10 lhe general regime or ton s

In contrast to othe r kmds of torts where only dIrec t and imilledla tc

damages of an infringement are to be eompensaled Lhc Proteclion

of Compcti ti on Aet prOVIdes that all legal and natural pe rso ns 10

whom damages have been caused are entitled to compensatIon

even where Ihe infringement has nol been aimed directly agaInst

them This speeial rule allows the compensa ti on of damages

sulTered by persons or entities (eg final customers and consumers)

~middot hi c h have not been a direel counLcrparty of the infnngerls but the

rc sults of the Infringement were passed on 10 them by the

intenllediatc commerC ia l operaLors

The dec is ion of the Com miSSion that has not been appea led or has

been upheld by the eourts on appea l IS binding on the e iv il courts

when reso lving a civ il aclion brought before the m

The Bulgarian C ivil Procedure Code provides for three types of

ac tions lhilt ca n be brought as a class aClion

I An action to es tablish an infringe ment ( the lofringing acti on 0 1 omi sion its illeRalily and the fault)

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2 An action La bring an infringement to an end andor to remedy the consequences of the infringement

3 A damages action on account of an infrlngemenL

The privatc enforccment of competition law violations IS

independent of the administrative en forcement by the Commission

and may serve as a fully alternative enforcement roule noL

132 Have there been any successful claims for damages or other remedies arising out of competition law infringements

To our knowledge there have been no successful claims for

damages or othcr remedies arising out or competition law

illrringelnents yeL

Peter Petrov

Borlslav Boyanov amp Co 82 Patriarch Evllmll Blvd Solla 1463 Bulgaria

Tel +35928055055 Fax +3592 8 055 000 Email ppelrovboyanovcom URL wwwboyanovcom

Peter Petrov IS a partner with Bonslav Boyanov amp Co and leads the firms competition practice He has represented clients a number of landmark merger cases in Bulgaria in the finance telecommunications energy pharmaceuticals manufacturing media consumer goods healthcare tobacco services and other industries He IS also actively Involved In Investigations of cartels and other prohlbded agreements as well as dominance abuse defending clients belore the Bulgarian competition authOrity and the courts as well as in competition advocacy work Among his publications are Included chapters on Bulgaria In Kluwer Laws Practical GUide to NatIOnal Competition Rules across Europe Rowley amp Bakers International Mergers The Antitrust Process City amp FinanCials A Practitioners GUide to Takeovers and Mergers in the European Union etc

equiring enforccment by thc Commission r

14 Miscellaneous

141 Is anti-competitive conduct outside Bulgaria covered by the national competition rules

AnLI-competitive conduct engaged in outside Bulgaria would fall

within the ambit of the Protection of Competition Act where such

conduct may resulL in prevention restriction or disonion of

competition in Bulgaria andor aUect the trade between the Member

SLales 01 the European Union In general the Commission will

prosecute prohibited agreeillents decisions or concerted practices

or abuse of dominance which have effect in Bulgaria even if they

have been commitLed outside the coumy

142 Please set out the approach adopted by the national competition authority and national courts in Bulgaria in relation to legal professional privilege

According to the Bulgarian Bar Act attorneys papers dossiers

eleCtronic doeuments computer equipment and atller information

carriers cannot be reviewed copied investigated or seized Any

correspondence between an attorney and its client Irrespective or

the manner in which it is conducted including electronic

correspondence cannot be reviewed copied investigated or seized

and cannot be used as evidenee All anorney may not be queslioned

about hisher conversations or correspondence with its client their

conversalions or correspondence with another elient the matters of

a eiient or the facts and elrcumstances heshe has become aware of

in the course of his defence and support funetions for the client

These rules apply only to registered attorneys (ie they do not apply

to in-house counsel and other consultants which are not attorneys)

and are ohserved strictly by all authorities and lhe courts

143 Please provide in no more than 300 words any other information of interest in relation to Bulgaria in relation to matters not covered by the above questions

This is Ilot applicable

Established in 1990 Bonslav Boyanov amp Co is one of the leading firms on the Bulgarian legal market The firms competition practice dates from the first Competition Act adopted in Bulgaria folowing the tranSition to market economy and has been involved in many of the landmark cases related to dominance prohibited agreements merger control state aid and unfair competition before the Bulgarian competition authority and the courts Consistently ranked top tier in competitionantitrust the practice was recently commended as undoubtedly the foremost practice around and the only firm ranked Band 1 in Bulgaria by Chambers Europe 2009 in this field For more detailed information please visit wwwboyanovcom

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