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New Priorities Rules of the Bulgarian Competition Protection Commission - Another Try for Boosting the Antitrust Enforcement

New Priorities Rules of the Bulgarian Competition Protection Commission

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At the beginning of 2021 the Bulgarian Competition Protection Act (CPA) was amended, among others, with the implementation of ECN+ Directive. This brought hope that the antitrust activity of the Bulgarian Competition Protection Commission (CPC) may increase.

In fact this implementation was fully completed in June 2018. CPC adopted regulations which further developed some of the tools envisaged by the ECN+ Directive and by the amended CPA. Most of them are already in force, such as: the new Rules for examining commitments proposals under CPA; the new Leniency programme and Rules for application of the Leniency Programme; and the new Methodology for determination of fines under CPA.

On 1st November 2021 another regulation adopted in June will become effective - the Rules for prioritizing of requests for opening of proceedings under chapter nine and twelve of the CPA (Priorities Rules).

The aim of the Priorities Rules is to ensure that CPC focuses on and uses its resources for prevention and termination of the most material violations of competition.

The Priorities Rules are adopted on the ground of a new provision in the CPA (in compliance with the ECN+ Directive). As per the provision CPC may reject to open an antitrust investigation upon request of prosecutor, leniency request or request of a damaged person, if the case does not fall within the enforcement priorities of the CPC. These priorities are defined in the special regulation adopted by the CPC and published on the CPC's website - the Priorities Rules.

Once CPC receives request for investigation of antitrust violation under CPA or under article 101 or article 102 of the TFEU (by the damaged entity, under the Leniency Program or by prosecutor), CPC will assess the request whether it is in the scope of the CPC's priorities considering the following criteria:

  • Significant еffect on competition on the relevant market – Priority will be given to requests for investigation of cartels and structural abuses of dominant position as well as violations concerning prices, quality and variety of the goods/services.
  • Possible material importance for the consumers' well-being – Violations result or may result into higher end-prices, offering of less quantities or less variety of products/services and offering of products/services with lower quality and no innovations will also have priority because they can have material direct or indirect impact on the consumers.
  • Strategic relevance for the enforcement competition policy – Repeated/multiple violations, violations concerning new market events which have not been investigated by the CPC so far, violations which affect competition directly and violations concerning procedures or mechanisms for use of public and EU funds will be priority.
  • Likelihood for finding violation and possible effects of the CPC actions – CPC will assess the likelihood for finding violation on the basis of the pieces of evidence which are enclosed to the request or collected during the preliminary investigation. Further, CPC will consider whether it is better placed to decide on the case than other competent authorities, such as sector regulators or the court.
  • Effective use of resources – CPC will consider what type and how much resources it has to involve in the investigation. In this connection, the purpose and duration of the investigation will be also relevant and will be assessed.
  • Annual priorities set and published by CPC each year before 31 January.

In order to verify relevant facts and circumstances in connection with the priority assessment, CPC is allowed to conduct preliminary investigation. During this preliminary investigation CPC may request information and all types of evidence, written or oral explanations from the concerned parties as well as information and support from the national competition authorities of the Member States and from European Commission. The collected information will be attached to the file, if such will be opened.

The case is in the scope of CPC's priorities, if it covers one or several criteria listed above. If the case falls within the CPC's priorities, the official investigation is opened. If not, CPC's chairman rejects to open investigation with order. In the order all factual and legal grounds of the rejection have to be elaborated in details. The order can be appealed before the court.

It will be seen in the following months and years whether the amendments of the CPA and the Priorities Rules (together with the other CPC's regulations) will really push the antitrust enforcement in Bulgaria which seems to be at its lowest level. In addition, it is also very important the antitrust to be brought back in the public agenda. The business has to be further and continuously educated how it can defend its rights and commercial interests in the context of competition law daily as well as before the competent authorities. Anyway, actions will be necessary from both sides - CPC and competition law practitioners outside CPC.

By Mariya Papazova, Partner, PPG Lawyers

Bulgaria Knowledge Partner

Schoenherr is a leading full-service law firm providing local and international companies stellar advice that is straight to the point. With 15 offices and 4 country desks Schoenherr has a firm footprint in Central and Eastern Europe. Our lawyers are recognised leaders in their specialised areas and have a track record of getting deals done with a can-do, solution-oriented approach. Quality, flexibility, innovation and practical problem-solving in complex commercial mandates are at the core of our philosophy.

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