Abstract
The principal statutory instrument governing competition law in Bulgaria is the Protection of Competition Act (hereinafter PCA). The PCA comprises the substantive rules on restrictive horizontal and vertical agreements, abuse of dominance and monopoly, merger control, sector enquiries, compliance review of legislation and administrative acts, and unfair competition. In other words, the PCA regulates both restraints of competition (Chapters III and IV) and unfair competition (Chapter VII).
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Notes
- 1.
Promulgated in State Gazette no. 102/28 November 2008, in force as of 2 December 2008.
- 2.
Art. 21 PCA reads, as follows: “Prohibition against Abuse of Monopoly or Dominant Position. The conduct of undertakings enjoying monopoly or dominant position, as well as the conduct of two or more undertakings enjoying a collective dominant position that may prevent, restrict or distort competition and impair consumers’ interests, shall be prohibited, such as those which: 1. impose directly or indirectly purchase or sale prices or other unfair trading conditions; 2. limit production, trade and technical development to the prejudice of consumers; 3. apply to certain partners dissimilar conditions for equivalent transactions, thereby placing them at a competitive disadvantage; 4. make the conclusion of contracts subject to acceptance by the other party of supplementary obligations or to the conclusion of additional contracts which, by their nature or according to common commercial usage, have no connection with the object of the main contract or with its performance; 5. unjustified refusal to supply goods or to provide services to actual or potential customers in order to impede their economic activity.”
- 3.
Art. 19 PCA reads as follows: “Monopoly Position. (l) The position of an undertaking which by law has the exclusive right to carry out a certain type of economic activity shall be monopolistic. (2) A monopoly position may be granted only by law in the cases provided for in Article 18, paragraph (4) of the Constitution of the Republic of Bulgaria. (3) Any other kind of granting of monopoly position apart from the cases under paragraph (2) shall be null and void.”
- 4.
Art. 18 (1) Constitution of the Republic of Bulgaria.
- 5.
Art. 18 (4) Constitution of the Republic of Bulgaria.
- 6.
Art. 20 PCA read as follows: “Dominant Position. Dominant shall be the position of an undertaking which, in view of its market share, financial resources, possibilities for market access, level of technology and economic relations with other undertakings may hinder competition on the relevant market, as it is independent of its competitors, suppliers or customers.”
- 7.
http://cpc.bg/Competence/AbuseOfDominanceDescription.aspx.
- 8.
CPC decision no. 623/2009, upheld on appeal by decision no. 15031/2011 on case no. 10995/2009, SAC 7th Chamber.
- 9.
CPC decision no. 331/2006, upheld on appeal by decision no. 8079/2007 on case no. 2408/2007, SAC 5th Chamber.
- 10.
CPC decision no. 218/2004.
- 11.
Art. 29 PCA.
- 12.
According the statutory definition (Sec. 1, para. 2 of the Supplementary Provisions of the PCA), “fair business practices” means the rules regulating market behaviour, which originate from laws and common commercial usages and do not infringe the accepted principles of morality.
- 13.
Decision of the Supreme Administrative Court no. 7966/2006 on case no. 3345/2006, 2nd Grand Chamber.
- 14.
Art. 36, Sec 4 PCA reads as follows: “The sale to the domestic market of significant quantities of goods over an extended period of time at prices lower than the costs of their production and marketing, with the purpose to unfairly solicit clients, shall be prohibited.”
- 15.
Which is more-or-less based on the Guidelines of the European Commission on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation 1/2003, at least as far as antitrust violations are concerned.
- 16.
CPC decision no. 846/2009.
- 17.
Decision of the Supreme Administrative Court no. 8730/2008 on case no. 5489/2008, 2nd Grand Chamber.
- 18.
See e.g. CPC decision no. 345/210 and CPC decision no. 375/2010.
- 19.
PCA 2008 was drafted with the assistance of the Italian competition authority (Autorità garante della concorrenza e del mercato) and EU financial support under the PHARE programme.
- 20.
Promulgated in State Gazette no. 39/17 May 1991, in force as of 20 May 1991.
- 21.
Promulgated in State Gazette no. 52/8 May 1998, in force as of 11 May 1998, repealed as of 2 December 2008.
- 22.
According to the Bulgarian Constitution, an absolute majority of all MPs is required to overcome a presidential veto.
- 23.
The new Art. 37a PCA reads as follows: “(a) Any act or failure to act of an undertaking with superior bargaining position, which contradicts good faith business practices and harms or threatens the legitimate interests of the weaker contractual party and the consumers shall be prohibited. Actions or failure to act shall be deemed in bad faith in the absence of objective economic justification, such as unjustified refusal to supply or purchase goods or services, subjecting a contractual partner to unjustified or discriminatory obligations or trading conditions, and unjustified severance of established business relations.
(2) The existence of a superior bargaining position should be established upon assessment of the structure of the relevant market and the specific relations between the undertakings concerned, taking into account the nature of their activities and difference in scale of operations, the availability of alternative business partners, including presence of alternative sources of supply, distribution channels and/or customers.”
- 24.
According to the provisional rules of the law, the CPC should develop specific criteria for SBP analysis in a special methodology that had to be adopted within 3 months as of entry into force of the amendment. The latter entered into force on 28 July 2015, so the methodology was expected by 28 October 2015. However, as of the date of the final revision of this national report there was no official publication.
- 25.
Adopted by CPC decision no. 393/2009.
- 26.
In contrast, the abolished 1998 CPA relied on a rebuttable presumption for the existence of dominance where the market share on the relevant market was 35% of more.
- 27.
Para. 3.2 Market Assessment Methodology.
- 28.
CPC decision no. 1133/2007, Gedeon Richter.
- 29.
See the basic guidance to private parties, published on the CPC website at: http://cpc.bg/Competence/AbuseOfDominanceDescription.aspx.
- 30.
CPC decision no. 628/2007, Kremikovtsi Trade, confirmed on appeal by decision no. 10980/2008 on case 9451/2007, SAC 5th Chamber.
- 31.
CPC decision no. 641/2014, Sofia Heating.
- 32.
CPC decision no. 820/2007 Pleven Transport.
- 33.
Nikolov, P. et al. The New Regulation of Protection of competition (Trud & Pravo, 2009), p. 223.
- 34.
CPC decision no. 1398/2014, Steneto waters.
- 35.
CPC decision no. 1054/2014, Bulgargas.
- 36.
CPC decision no. 470/2013, Pleven transport.
- 37.
Nikolov, P. et al, p. 244.
- 38.
CPC decision no. 121/2011, Retail chains.
- 39.
CPC decision no. 628/2007, Kremikovtsi Trade and CPC decision no 280/2014, Bus transport.
- 40.
CPC decision no. 268/2008, NMC.
- 41.
CPC decision no. 623/2008, Pulsar.
- 42.
See e.g. CPC decision no. 1023/2007, BTC ADSL.
- 43.
CPC decision no. 1201/2008, BTC.
- 44.
- 45.
CPC decision no. 1023/2007, BTC ADSL.
- 46.
CPC decision no. 506/2013, EnergoPro Sales.
- 47.
CPC decision no. 1576/2013, Haos Invest.
- 48.
CPC decision no. 189/2014, BTV Media.and CPC decision no. 926/2014, EVN.
- 49.
CPC decision no. 1133/2007, Gedeon Richter and CPC decision no. 926/2014, EVN.
- 50.
CPC decision no. 28/2000, Gypsum.
- 51.
Nikolov, P. et al, p. 276.
- 52.
CPC decision no. 54/2008, Dionysius Varna.
- 53.
CPC decision no. 139/2006, Albena Autotrans, and CPC decision no. 740/2014, Sofia Airport.
- 54.
CPC decision no. 510/2007, NetPlus.
- 55.
CPC decision no.147/2005, ABRO and CPC decision no. 331/2006, MusicAutor, confirmed on appeal by decision no. 8079/2007 on case 2408/2007, SAC 5th Chamber.
- 56.
CPC decision no. 177/2013, PMU/Toplo.
- 57.
CPC decision no. 64/2014, EnergoPro.
- 58.
See, e.g. CPC decision no. 54/2008, Dionysius Varna.
- 59.
CPC decision no. 500/2008, Poligrafsnab.
- 60.
CPC decision no. 500/2008, Poligrafsnab.
- 61.
CPC decision no. 926/2014, EVN.
- 62.
CPC decision no. 1133/2007, Gedeon Richter.
- 63.
CPC decision no. 16/2006, quashed in part on appeal by decision no. 8397/2006 on case 1884/2006, SAC 5th Chamber, quashed entirely on cassation by decision no. 1402/2007 on case 10025/2006, SAC 2nd Grand Chamber.
- 64.
See the basic guidance to private parties, published on the CPC website at: http://cpc.bg/Competence/AbuseOfDominanceDescription.aspx.
- 65.
See e.g CPC decision no. 88/2005, Simid Group; CPC decision no. 806/2009, BTC; CPC decision no. 1088/2008, BTC/BTC Mobile.
- 66.
Art. 36, Sec. 4 PCA.
- 67.
See the basic guidance to private parties, published on the CPC website at: http://cpc.bg/Competence/AbuseOfDominanceDescription.aspx.
- 68.
CPC decision no. 624/2009, CPC decision no. 135/2006, CPC decision no. 210/2006 (all three decisions involve the Bulgarian Telecommunications Company—the incumbent fixed lines telecom operator).
- 69.
CPC decision no. 858/2008, Plovdiv International Fair.
- 70.
CPC decision no. 49/2005, BNT/bTV.
- 71.
CPC decision no. 28/2000, Gypsum.
- 72.
In line with Art. 16 (4) Framework Directive, the Bulgarian Electronic Communications Act defines “significant market power” as a position equivalent to dominance, i.e., a position of economic strength vesting in a single undertaking (or a group of undertakings) the power to behave to an appreciable extent independently of competitors, users and end users.
- 73.
Ruling no. 520/2014 on case 4004/2013, SCC 2nd Commercial Chamber.
- 74.
Art. 98 (1), para 4 PCA.
- 75.
The PCA further empowers the CPC in antitrust investigations only (i.e. not for the purposes of unfair competition review) to conduct site inspections (dawn raids) on the basis of a court warrant. The warrant is issued by a judge from the Administrative Court-Sofia, upon the request of the CPC Chairperson. During site inspections CPC officials are entitled to search premises, means of transport and other locations used by the undertakings, which are listed or otherwise identified in the warrant. The law does not explicitly empower the CPC to conduct inspections in private premises or to search individual persons. Within the scope of the inspection, CPC officials may examine all documents and records, related to the activity of the undertakings concerned, irrespective of the medium on which they are stored, and may seize or obtain electronic, digital and forensic evidence, as well as traffic data, from all types of computer data media, computer systems and other information media as well as seize the devices for transmission of information.
- 76.
Art. 96 PCA.
- 77.
Art. 75 (2) PCA.
- 78.
In practice however, the CPC would reject the admission of additional evidence at that stage, unless it clearly refutes the conclusions made during the investigation.
- 79.
The CPC may impose structural remedies only where there are no equivalent behavioural remedies, or where such behavioural remedy would be more burdensome to the respective undertaking.
- 80.
Nikolov, P. et al., p. 208.
- 81.
See e.g. Art. 17 PCA specifying the conditions for exemption from the general prohibition, similar to Art. 101 (3) TFEU.
- 82.
The interests of suppliers are not differentiated as a separate object of protection and they would come in the focus of CPC enforcement only as part of the general obligation of the authority to protect the competitive relations along the supply chain from deformations that in the long term may affect end-users.
- 83.
The most recent example seems to be the investigation of Bulgargaz following the SoO of the European Commission against BEH (the Bulgarian Energy Holding).
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Petrov, A. (2017). Bulgaria. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Abuse of Dominant Position and Globalization & Protection and Disclosure of Trade Secrets and Know-How. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-46891-4_4
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