Loi sur la protection de la concurrence (SG n° 102/2008), Bulgarie

Scope

Article 2. (1) This Law shall apply to:

1. undertakings and associations of undertakings which carry out their activities within or outside the territory of the Republic of Bulgaria, if they explicitly or tacitly prevent, restrict, distort or may prevent, restrict or distort competition in the country;
2. state authorities, including executive branch and local authorities, if they explicitly or tacitly prevent, restrict, distort or may prevent, restrict or distort competition in the country;
3. undertakings to whom the state or the municipality have assigned services of public interest insofar as the application of the Law does not impede de facto or de jure the fulfilment of the tasks assigned to them and competition in the country is not affected to an appreciable extent;
4. natural persons who commit or contribute to committing an infringement under this Law.

(2) This Law shall not apply to actions, the consequences of which restrict or may restrict or distort competition in another state, unless otherwise provided in an international agreement, which has entered into force, to which the Republic of Bulgaria is a party.

Chapter Two

COMMISSION ON PROTECTION OF COMPETITION

Members

Article 4. (1) The Commission shall consist of seven members, including a chairperson, two deputy chairpersons and four members, elected and dismissed by the National Assembly. The chairperson shall be elected for a term of office of 6 years and the deputy chairpersons and the members – for a term of office of 5 years.

(2)

The chairperson of the Commission must be a qualified lawyer having legal work experience of not less than 10 years and meeting the requirements set out in paragraph (3).

(3)

The Commission members shall be Bulgarian nationals who hold university degree in law or economics and have experience in their relevant field of not less than five years, persons of high professional and moral standing, who have not been sentenced to imprisonment for a deliberate indictable crime. They shall not benefit from undertakings in any form whatsoever and occupy another paid position, except when carrying out activity as scientists, lecturers or arbitrators.

(4)

The Chairperson, Deputy Chairpersons and the members of the Commission shall swear an oath before the National Assembly in accordance with Article 76, paragraph (2) of the Constitution of the Republic of Bulgaria.

(5)

The Commission’s chairperson shall receive a basic monthly remuneration in the amount of 90 percent of the basic remuneration of the Speaker of the National Assembly. The Deputy Chairpersons shall receive a basic monthly remuneration of 95 percent, and the members - of 90 percent of the basic monthly remuneration of the Commission’s Chairperson.

Termination of Powers

Article 5. (1) The powers of the Chairperson, Deputy Chairpersons and members of the Commission shall be terminated by the National Assembly prior to the expiry of their term of office:

1. at their own request;

2. when it is impossible for them to perform their duties for more than six consecutive months;

1. for incompatibility with the requirements of Article 4, paragraph (3), that has occurred after the election.
2. in case of decease.

(2)

In the cases under paragraph (1), items 1, 2 and 3 the powers shall be terminated with a decision of the National Assembly.

(3)

If any of the circumstances under paragraph (1) occurs,, the Chairperson shall notify the National Assembly. When the circumstance under paragraph (1) refers to the Chairperson, any Commission member may do the notification.

(4)

Within one month as of receipt of the notification under paragraph (3), the National Assembly shall adopt a decision on the pre-term termination of the powers and shall elect a new member for the remainder of the initial term of office.

(5)

Up to two months before the expiry of the term of office of the Chairperson, Deputy Chairpersons and the members of the Commission, the National Assembly shall elect new Chairperson, Deputy Chairpersons and members.

(6)

In case that upon expiry of the term of office of the Chairperson, Deputy Chairpersons and members of the Commission the election under paragraph (5) is not made, they shall continue to exercise their powers until the inauguration of the new members.

Organisation and Activity

Article 6. (1) The Commission’s organization and activity shall be regulated by Rules of Organisation, which shall be promulgated in the State Gazette.

(2) The activities of the Commission shall be assisted by an administration.

Administration of the Commission

Article 7. (1) The composition, organizational structure, rights and obligations of the administration of the Commission shall be set out in the rules adopted pursuant to Article 6, paragraph (1).

(2) The legal relations with the employees of the administration shall arise from and be governed by the provisions of Civil Servant Act and the Labour Code.

Competence

Art. 8. (1) The Commission for Protection of Competition shall:

1. establish infringements under this Law as well as under Article 81 and Article 82 of the Treaty establishing the European Community;
2. impose sanctions as provided for in this Law;
3. establish that no infringement under this Law has been committed or there are no grounds for taking action for committed infringement under Article 81 and Article 82 of the Treaty establishing the European Community;
4. cooperate with the European Commission and the other national competition authorities of the Member States of the European Union in accordance with Regulation (EC) No. 1/2003 and Regulation (EC) No. 139/2004;
5. issue the authorisations as provided for in this Law;

6. propose to the competent state authorities and local government bodies, to revoke or amend administrative acts, issued by them, that have or may lead to the prevention, restriction or distortion of competition;

1. impose interim measures in the cases provided for in this Law;
2. approve the undertaking of commitments by undertakings or impose measures to restore competition in respect of undertakings, whose behaviour is subject to investigation under Article 15 and Article 21 of this Law and/or under Article 81 and Article 82 of the Treaty establishing the European Community, as well as the remedies for the preservation of competition under Article 86 of this Law;
3. rule on termination of the infringements, including by imposing the appropriate behavioural and/or structural remedies to restore competition;
4. conduct sector inquiries of the competitive environment;
5. rule on any other requests, related to this Law;
6. interact with other state authorities, including the authorities of the executive branch, as well as with local government authorities, institutions and nongovernmental organisations, by participating in drafting legislatative acts, expressing opinions on draft and existing legislative and general administrative acts, exchanging information and other forms of cooperation;
7. propose and organize initiatives related to raising awareness of the rules of competition;
8. adopt the Rules of organization, as well as any other acts as provided for in this Law;
9. keep an electronic register of the adopted acts.

Chairperson of the Commission

Article 9. (1) The Chairperson of the Commission shall:

1. represent the Commission or empower persons to represent it;
2. organise and manage the activities of the Commission;
3. schedule and preside the sittings of the Commission;
4. approve the staff table of the Commission’s administration;

1. conclude, modify and terminate the employment and civil service contracts with the officials from the administration;
2. 6. organise and enforce the decisions of the Commission which have come into force;
1. approve any internal regulations of the Commission, with the exception of the acts under Article 8, item 14;

8. execute the budget;

1. provide information to the public about the activities of the Commission through the mass media;
2. perform the international cooperation of the Republic of Bulgaria with international organisations or with the authorities of other states in the field of protection of competition.

(2) In performing his/her functions, the Chairperson shall be assisted by the Deputy Chairpersons. He/she shall appoint the Deputy Chairperson of the Commission who shall act as his/her substitute in his/her absence.

Conflict of interests

Article 10. (1) A Commission member or an official from the administration may not take part in a proceeding under this Law, in case he/she is interested in the outcome of the proceedings or there are reasonable doubts about his/her impartiality.

(2) The Commission member or the official in question shall be removed on its own initiative or upon a motion of the parties.

Professional secret

Article 11. (1) The members of the Commission and the officials of the administration shall not have the right to disclose information, which constitutes professional secret.

(2) Information, which constitutes professional secret, may be disclosed by the Commission only in performing its obligations as a national competition authority of a Member State of the European Union under the procedure set forth in Regulation (EC) No. 1/2003 and Regulation (EC) No. 139/2004.

Pecuniary liability

Article 12. The members of the Commission and the officials of the administration shall not bear any pecuniary liability for damages caused in the course of performing their functions and powers under this Law, unless they have intentionally committed indictable crime.

Commission’s Budget

Article 13. (1) The Commission’s budget shall be drawn up, executed and accounted for in compliance with the State Budget Act.

(2) The Commission shall receive to its budget income from:

1. fees and expenses pursuant to this Law, the Public Procurement Law and the Concessions Act;
2. pecuniary sanctions and fines imposed with Commission decisions which have come into force;

3. other sources from activities allowed by a law..

(3)

Twenty-five percent of the funds under paragraph (2), items 1 and 2 shall be used to improve the qualification and provide incentives to the members and the officials of the Commission, included in the total number of the Commission’s staff.

(4)

The terms and procedure for the allocation of the funds under paragraph (3) shall be governed by specially adopted internal rules.

Annual Report

Article 14. (1) By May 30 of the following year the Commission shall prepare and submit to the National Assembly an annual report on its activities.

(2) The Commission shall publish the annual report under the previous paragraph and make it available on its site.

Title Two

Agreements of Minor Importance

Article 16. (1) The prohibition referred to in Article 15, paragraph (1) shall not apply to agreements, decisions or concerted practices with inappreciable effect on competition.

(2) The effect shall be considered inappreciable where the aggregate share of the participating undertakings on the market of goods or services affected by the agreement, the decision or the concerted practice does not exceed:

1. ten per cent of the relevant market, where the participants are competitors;

2. fifteen percent of any of the relevant markets, where the participants are not competitors;

(3)

Paragraph (1) shall not apply where the agreements, decisions or concerted practices have as their object or effect:

1. direct or indirect fixing of prices;
2. allocation of markets and/or customers;
3. limitation of production and sales.

(4) The Commission shall adopt rules, governing the application of paragraphs (2) and

(3)

which shall be published in the register under Article 68, paragraph (1).

Exemption from the Prohibition

Article 17. (1) Agreements, decisions and concerted practices within the meaning of Article 15, paragraph (1) shall not be prohibited, if they contribute to the improvement of the production or distribution of goods or provision of services or to the promotion of technological and/or economic progress, while ensuring a fair share of the resulting benefits to the consumers and if they:

a) do not impose on the undertakings concerned restrictions that are not indispensable to the attainment of these objectives; and

b) do not afford such undertakings the possibility of eliminating competition in respect of a substantial part of the relevant market.

(2) The burden of proof in respect of the circumstances under paragraph (1) shall be upon the undertakings or the associations of undertakings that invoke them.

Block Exemption from the Prohibition

Article 18. (1) Certain categories of agreements, decisions and concerted practices which comply to the requirements under Article 17 may be exempted from the prohibition under Article 15 by a decision of the Commission, which shall not be subject to appeal. It shall be published in the register under Article 68.

(2)

Where the Commission, as a result of an investigation, establishes that an agreement, decision or concerted practice, falling within the scope of a decision under paragraph (1), does not meet the requirements specified in Article 17, it shall rule that the block exemption decision shall not apply to that particular case, but shall not impose the sanction provided for in the Law for an infringement under Article 15 and shall specify a period within which the parties shall bring their agreement into compliance with Article 17 or terminate it.

(3)

Where the Commission, as a result of an investigation, establishes that an agreement, decision or concerted practice is incompatible with Article 81, paragraph (3) of the Treaty establishing the European Community in the territory of the country or part thereof, which has all the characteristics of a distinct geographic market, the Commission shall rule that the provisions of the relevant European Union Regulation on block exemption from the prohibition under Article 81 paragraph (1) of the Treaty establishing the European Community shall not apply in the particular case, but shall not impose the sanction provided for in the Law for an infringement under Article 81, paragraph (1) of the Treaty establishing the European Community and shall specify a period within which the parties shall bring their agreement into compliance with Article 81, paragraph (3) of the Treaty establishing the European Community or terminate it.

Chapter Four

ABUSE OF MONOPOLY OR DOMINANT POSITION

Dominant Position

Article 20. (1) 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.

Prohibition of Abuse of Monopoly or Dominant Position

Article 21. 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. 2. limit production, trade and technical development to the prejudice of consumers;
1. apply to certain partners dissimilar conditions for equivalent transactions, thereby placing them at a competitive disadvantage;
2. 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;
3. unjustified refusal to supply goods or to provide services to actual or potential customers in order to impede their economic activity.

Chapter Five

CONTROL ON CONCENTRATIONS BETWEEN UNDERTAKINGS

Derogations

Article 23. A concentration shall not be deemed to arise in cases where:

1. credit institutions and other financial institutions or insurance companies, the normal activities of which include transactions in securities for their own account or for the account of any third party, hold on a temporary basis securities which they have acquired in an undertaking with a view to reselling them, but only provided that:
2. a) they do not exercise the voting rights attached to those securities in order to influence the competitive behaviour of that undertaking; or b) they exercise such voting rights only in order to prepare the disposal of those securities and that any such disposal takes place within one year of the date of acquisition;
1. control is acquired by a person, who according to the law in force performs functions related to the winding up or declaring the insolvency of the undertaking;
2. the operations referred to in Article 22, paragraph (3) are carried out by financial holding companies, provided that the control acquired by the holding is exercised solely to maintain the full value of the investments and not to determine directly or indirectly the competitive behaviour of the undertakings in which the holding participates.

Prior Notification

Article 24 (1) Concentrations shall be subject to mandatory prior notification to the Commission where the aggregate combined turnover of all undertakings participating in the concentration in the territory of the Republic of Bulgaria in the preceding year exceeds BGN 25 million, and

1. the turnover of each of at least two of the undertakings participating in the concentration in the territory of the Republic of Bulgaria during the preceding financial year exceeds BGN 3 million, or
2. the turnover of the undertaking – subject to acquisition in the territory of the Republic of Bulgaria during the preceding fiscal year exceeds BGN 3 million.

(2) Undertakings shall be obliged to notify the Commission following the conclusion of the agreement, the public announcement of the bid or the acquisition of control, but before the undertaking of any actual actions to implement the transaction. In certain cases, upon request of the parties, the Commission may assess concentrations prior to conclusion of the agreement or the public announcement of the bid, where the parties provide sufficient evidence of their intentions to conclude an agreement or have publicly announced their intention to make a tender offer.

Calculation of Turnover

Article 25. (1) The aggregate turnover shall include the net income from sales of an undertaking participating in the concentration during the preceding financial year, being the amounts derived from sale of products, goods and services, generated from the ordinary activities of the undertaking, reduced with commercial discounts, cutbacks, rebates and value added tax. Turnover shall not include income from sale of products, goods and services between undertakings belonging to the same economic group.

(2) Where concentration comprises acquisition of part or parts of one or more undertakings, whether or not constituted as separate legal entities, only the turnover relating to the part or parts which are the subject of the concentration shall be taken into account.

(3) For the purposes of this Article, turnover shall consist of:

1. for credit or other financial institutions – the amount of the following revenue items after deduction of VAT and when necessary – other taxes related to these items:

a) interest income and other similar income;

b) income from securities: income from shares and other variable yield securities; income from participating interests; income from shares in affiliated undertakings;

c) commissions receivable;

d) net profit on financial operations;

e) other operating income;

the turnover of a credit or other financial institution in the Republic of Bulgaria

includes the income items, as determined above received by their branches or divisions established in the Republic of Bulgaria;

2. for insurance undertakings – the value of the gross premiums written, which shall comprise all amounts received and receivable in respect of insurance contracts, issued by or on behalf of the insurance undertakings, including outgoing re-insurance premiums after deduction of taxes and instalments or levies charged by reference to the amounts of individual premiums or the total volume of premiums.

(4)

The aggregate turnover of the undertaking shall be calculated as a sum of the respective turnovers of:

1. the respective undertaking-participant;
2. the undertakings controlled directly or indirectly pursuant to Article 22 paragraph

(3)

by the undertaking-participant;

3. the undertakings controlling directly or indirectly the respective undertaking-participant pursuant to Article 22, paragraph (3);

4. other undertakings controlled directly or indirectly pursuant to Article 22, paragraph

(3)

by an undertaking exercising control over the respective undertaking-participant;

5. the undertakings jointly controlled by the undertakings mentioned in items 1 – 4.

(5)

When any of the undertakings under paragraph (4), items 1 - 4 exercises joint control over another undertaking, when calculating the aggregate turnover:

1. no account shall be taken of the turnover resulting from the sale of products or the provision of services between the joint undertaking and the undertakings under paragraph (4) items 1 – 4;
2. account shall be taken of the turnover resulting from the sale of products and the provision of services between joint undertakings and any third undertaking. This turnover shall be apportioned equally amongst the undertakings exercising joint control.

Authorisation for Concentration

Article 26. (1) The Commission shall authorise a concentration provided that it does not lead to the creation or strengthening of a dominant position, as a result of which effective competition in the relevant market would be significantly impeded.

(2) The Commission may authorise a concentration which, while creating or strengthening a dominant position, aims at modernisation of the relevant economic activity, improvement of market structures, better meeting the interests of consumers and overall the positive effect outweighs the negative impact on competition in the relevant market.

Chapter Six

SECTOR INQUIRIES AND COMPETITION ADVOCACY

Competition Advocacy

Article 28. In order to protect free economic enterprise and prevent restriction or distortion of competition, the Commission shall assess the compatibility with the provisions of this Law of:

1. draft legislative or regulatory administrative or general administrative acts;
2. effective legislative or regulatory administrative or general administrative acts;
3. draft acts of associations of undertakings, which regulate the activities of their members.

Chapter Seven
PROHIBITION OF UNFAIR COMPETITION

General Prohibition

Article 29. Any action or omission when carrying out economic activity, which is contrary to good faith commercial practices and damages or may damage the interests of competitors shall be prohibited.

Damaging Good Name of Competitors

Article 30. Damaging good name and trust in competitors, and in the goods or services offered by them, by way of assertion or dissemination of false information, as well as by way of misrepresenting of facts, shall be prohibited.

Misleading

Article 31 Any misleading in respect of substantive characteristics of goods or services, or in respect of the manner of use of the goods or the provision of the services by asserting false information or misrepresenting facts shall be prohibited.

Prohibition of Misleading and Comparative Advertising

Article 32 (1) Misleading advertising, as well as illegal comparative advertising shall be prohibited.

(2) The advertiser and the advertising agency, which produced the advertisement, shall bear responsibility for misleading and illegal comparative advertising.

Misleading Advertising

Article 33 (1) Misleading shall be any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of this, is likely to affect their economic behaviour or, for these reasons, damages or is likely to damage a competitor.

(2) In determining an advertising as misleading, account shall be taken also of:

1. the characteristics of the goods and services, such as: their availability, appearance, execution, composition, method and date of manufacture of the goods or provision of the services, usage expiration date, ways of usage, quantity, geographical and commercial origin, the results to be expected from their use, results and substantial features of tests or checks carried out on the goods or services;
2. the price or the manner of its formation and the conditions on which the goods are supplied and the services provided;
3. data about the advertiser or the advertising agency, such as: name or trade name, address or seat; address of management; property; industrial and intellectual property rights; awards or distinctions.

Comparative Advertising

Article 34 (1) Comparative advertising means any advertising which directly or indirectly identifies a competitor or goods or services offered by him.

(2) Comparative advertising shall be permitted when:

1. it is not misleading under the meaning of Article 33 of this Law and is not an unfair commercial practice under the meaning of Art. 68e, 68f, 68g of the Consumer Protection Act;
2. it compares goods or services satisfying the same needs or intended for the same purpose;
3. it objectively compares one or more features of the goods and services which are substantial, comparable and representative for these goods and services, including their prices;
4. it does not lead to confusion between the advertiser and his competitors or between trademarks, trade names, other distinguishing marks, goods or services of the advertiser and those of his competitors;
5. it does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities or situation of the competitors;

6. it compares goods with the same designation of origin;

1. it does not take unfair advantage of the reputation of the trademark, trade name or other distinguishing marks of the competitors or of the designation of origin of competing goods;
2. it does not present the goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name.

(3) In order to assess whether comparative advertising is legal, in addition to the circumstances laid down under paragraph (2), account shall be had of the provisions of Regulation (EC) 510/2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs.

Imitation

Article 35 (1) The offering of goods or services whose appearance, packaging, marking, name or other features deceive or may lead to deception in respect of their origin, manufacturer, seller, method and place of manufacture, the source and manner of acquisition or purpose, the quantity, quality, nature, consumer properties and other substantial characteristics of the goods or services, shall be prohibited.

(2)

The use of trading name, mark or geographical indication identical or similar to those of other persons, in a manner that may lead to injuring the interests of competitors shall be prohibited.

(3)

The use of a domain name or web-site design identical or similar to those of other persons in a manner that may mislead and/or injure the interests of competitors shall be prohibited.

Unfair Solicitation of Clients

Article 36 (1) Carrying out unfair competition, aimed at soliciting clients, as a result of which existing agreements are terminated or breached, or entry into such agreements with competitors is prevented, shall be prohibited.

(2)

Offering or granting as a supplement to goods sold or services provided, either free of charge or at an ostensible price, of other goods or services except for: advertising items of minor value and bearing a clear indication of the advertising undertaking; items or services which according to commercial usage are an attribute to the goods sold or services provided; goods or services as a rebate for sales in higher quantities; shall be prohibited.

(3)

Conducting a sale, where an offer or promise is attached, which is conditional upon: solving problems, puzzles, raffles, riddles; collecting a series of coupons and other similar items; organizing games to win money or prizes, the value of which

significantly exceeds the price of the goods or services sold, shall be prohibited. The Commission, on the grounds of Article 8, item14, shall adopt rules with which it shall determine in which cases the value of the promised prize substantially exceeds the price of the goods or services sold.

(4)

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.

Prohibition of Disclosure of Production or Trade secrets

Article 37 (1) Discovering, using or disclosing manufacturing or trade secrets that is contrary to good faith commercial practices, shall be prohibited.

(2) Using or disclosing manufacturing or trade secrets shall be prohibited, where they have been discovered or disclosed under the condition that they shall not be further used or disclosed.

Title Three
PROCEEDINGS

Chapter Eight

GENERAL PROVISIONS

Suspension of Proceedings

Article 40. (1) The Commission may suspend the proceedings with a ruling, in case its final decision is conditional on the resolution of an issue or a dispute, falling within the competence of another authority.

(2)

The Commission may suspend the proceedings in the cases provided for in Article 13 of Regulation (EC) No. 1/2003 and in Article 22, paragraph (2) of Regulation No. 139/2004.

(3)

The rulings under paragraphs (1) and (2) are subject to appeal under the procedure set forth in Article 64 paragraph (2).

(4)

The proceedings shall be renewed with a ruling ex officio or upon the request of one of the parties, after all obstacles to the proceedings have been eliminated.

Termination of Proceedings

Article 41. No proceedings shall be initiated and the proceedings initiated shall be terminated by a decision of the Commission where:

1. the Commission is not the competent authority to resolve on the case;
2. the limitation period as laid down in this Law has expired;
3. in the cases under Article 11, paragraph (6) and under Article 13 of Regulation (EC) No. 1/2003 as well as under Article 22, paragraph (3) of Regulation (EC) No. 139/2004;
4. the notifying party or the respondent are wound up, could not be found or do not exist.
5. the notifying party withdraws its request for authorization of a concentration;
6. in the cases under Article 75, paragraph (2).

Limitation period

Article 42. (1) The limitation period for infringements under this Law shall be:

1. three years – for infringements of the provisions referring to requests for information or making of inspections;

2. five years – for all other infringements.

(2)

The limitation period shall run from the day the infringement is committed and in case of continuous infringement - from the date it is discontinued.

(3)

The limitation period under paragraph (1) shall be interrupted upon the initiation of proceedings to establish the infringement by the Commission or another national competition authority of a Member State of the European Union or by the European Commission.

(4)

No limitation period shall run during the time proceedings are ongoing or until entry of the decision into force.

(5)

The Commission shall monitor ex officio for the expiration of the limitation period.

Parties to the Proceedings

Article 43. (1) The parties to the proceedings before the Commission shall be the persons, who have submitted the application or notification, based on which proceedings have been initiated as well as the persons who have been accused of having committed an infringement under this Law.

(2) The Commission may constitute in the proceedings interested third parties upon their substantiated request:

1. at any time during the proceedings under Chapters Nine and Twelve;
2. within 30 days from the date of publication of the decision to open an in-depth investigation of a concentration under Chapter Ten.

Investigation

Article 44.(1) The investigation shall be carried out by the case team, appointed according to Article 39, paragraph (2), and shall be supervised by a member of Commission, who shall provide instructions where needed.

(2)

The investigation shall be carried out in compliance with the general rules of this chapter and as laid down in Chapters Nine, Ten, Eleven and Twelve.

(3)

The investigation and the determining of the position of the undertakings on the relevant market shall be carried out in compliance with the Methodology adopted by the Commission.

Powers to Conduct Investigation

Article 45. During the investigation the supervising member of the Commission and the case team, appointed according to Article 39, paragraph (2), shall have the right to:

1. request information, material, written, digital and electronic evidence, irrespective of the media on which they have been stored;
2. take oral or written statements;
3. conduct inspections;
4. entrust the conducting of expertise by external experts;
5. request information or assistance by other national competition authorities of Member States of the European Union and by the European Commission.

Obligation for Cooperation

Article 46. All natural persons and legal entities, including undertakings, associations of undertakings, state authorities and local government bodies, non-governmental organizations and the National Statistical Institute, shall be obliged to render assistance to the Commission in exercising its powers laid down in this Law as well as in Regulation (EC) No. 1/2003 and Regulation (EC) No. 139/2004.

Gathering of Information

Article 47. (1) Persons, whose assistance has been requested pursuant to this act, as well as pursuant to Regulation(EC) No. 1/2003 and Regulation (EC) No. 139/2004, may not refer to any production, trade or other secret protected by law.

(2)

When the information contains data representing classified information, the procedure laid down in the Protection of Classified Information Act shall apply.

(3)

When the information contains personal data, the procedure laid down in the Personal Data Protection Act shall apply.

(4)

The persons requested to provide information should furnish it within a time limit determined by the Commission.

(5)

The information, provided by all parties in the course of the proceedings, must be complete, accurate, true and not misleading.

(6)

The Commission may hold that the facts, in respect of which the party or the interested party have hindered the gathering of the information requested from them, have been proven.

Use of Information

Article 48. Any information, gathered in the course of an investigation, may be used only for the purposes of this Law.

Taking of Oral Statements

Article 49. (1) Oral statements in the course of proceedings shall be taken and entered in a record by the case team.

(2)

The record shall be signed by the person giving the statement as well as by the case team on the proceedings.

(3)

When there are sufficient grounds to assume that disclosure of the identity of any person, who has given statements or has provided data for an infringement under this Law may lead to significant adverse effects on his/her activity or on him/her as a person, the Commission shall take measures not to disclose his/her identity in accordance with a procedure set out in the internal rules, adopted by the Commission.

Inspections

Article 50. (1) The Commission may carry out all kinds of inspections of the undertakings and associations of undertakings after receipt of an authorization under Article 51.

(2) During the inspections under paragraph (1), the officials, appointed by an order of the Commission’s Chairperson, shall have the power to:

1. enter any premises, means of transport and other locations used by the undertakings or associations of undertakings;
2. examine all documents and records, related to the activity of the undertakings or associations of undertakings, irrespective of the medium on which they are stored;
3. seize or obtain in paper, digital or electronic medium any copies of or extracts from documents and records, irrespective of the media on which they are stored or, where this is impossible, seize the originals, as well as any other material evidence;
4. 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;
5. receive access to all types of information media, including servers, accessible by computer systems or other means, located in the inspected premises;
6. seal for a certain period of time any premises, means of transport and other locations, used by the inspected undertakings or associations of undertakings, as well as commercial or accounting books or other information media;
7. take oral statements of any representative or member of the management or staff of the undertakings or associations of undertakings, on circumstances, related to the subject matter and purpose of the inspection.

(3)

During the inspections, the Commission officials shall be assisted by the police, in accordance with the powers conferred upon it by the Ministry of Interior Act. The procedure to organize and conduct the joint actions shall be determined by an Instruction issued by the Minister of Interior and the Chairperson of the Commission.

(4)

Any document or evidence found may be seized if they contain data raising well-founded doubts of other infringements under Article 15, Article 21 or Article 24 of this Law or under Article 81 or Article 82 of the Treaty establishing the European Community. After conclusion of the inspection they shall be immediately handed over to the Commission for adoption of a decision pursuant to Article 38, paragraph (1), item 1.

Judicial Authorisation

Article 51. (1) The inspections shall be conducted following an authorisation by a judge from the Administrative Court – Sofia, which shall be issued upon request of the Chairperson of the Commission.

(2) The request for judicial authorisation shall contain:

1. the purpose of the inspection and the trading name of the undertaking or the association of undertakings for which authorisation is requested to be inspected;
2. the nature of the alleged infringements and in case of proceedings under Chapter Ten – the nature of the concentration and the parties thereto;

3. justification of the reasons, which necessitate conducting the inspection.

(3)

In the cases under Article 93 the request for authorization shall be accompanied by the decision of the Commission related to request of assistance, as well as the request for assistance.

(4)

The Administrative Court – Sofia shall, on the day the request is filed, resolve upon it by issuing a ruling. The ruling shall contain the exact name of the undertaking or association of undertakings, which shall be inspected. The authorisation shall apply to the premises, means of transport and other locations, which are used by the inspected undertaking or association of undertakings.

(5)

Where it is necessary to conduct simultaneous inspections of several undertakings or associations of undertakings, the Chairperson of the Commission may file one request for all undertakings, and the court shall pass separate rulings for each of the undertakings or associations of undertakings.

(6)

The rulings under paragraphs (4) and (5) as well as any refusal to pass such rulings shall be subject to appeal before a three-member panel of the Supreme Administrative Court within three days. The three-day period shall commence as of the day the Commission and respectively, the undertaking or association of undertakings, are notified. The appeal shall not suspend the execution.

Procedure for Collection of Evidence during Inspections

Article 52. (1) The collection of evidence in the course of inspections shall be conducted by the Commission officials in the presence of representatives of the undertaking or association of undertakings, any of its employees or any other person having the right to be present at the premises or means of transport or found to be there at the time of the inspection.

(2)

The copies of the documents seized shall be certified by the Commission officials and by the representatives of the undertakings or associations of undertakings or an official authorised by them. In case the representatives refuse to certify, certification shall be made only by the Commission officials.

(3)

The electronic copies of the documents seized, the digital, electronic and forensic evidence shall be sealed in an appropriate way.

(4)

The original documents, material evidence and information on electronic and digital media shall be seized as found at the time of the inspection and they shall be returned to the undertaking or association of undertakings after the Commission decision has entered into force.

(5)

On request by the undertakings or association of undertakings from which original documents are seized, the same can be returned to them also before entry into force of the decision of the Commission. In all cases the Commission shall return the original documents when the exercise of the rights attaching thereto relates to their physical possession.

(6)

In the cases under paragraph (5), the Commission shall use copies of the original documents, certified by the representatives of the Commission and of the undertakings or associations of undertakings from which the originals have been seized.

(7)

A written protocol, certifying what evidence has been seized under paragraphs (2), (3) and (4), shall be drawn at the inspected premises, with full and precise list of the items seized. The written protocol shall be signed as provided for in paragraph (2) and shall be delivered to the persons from whom the evidences were seized.

External Experts

Article 53. (1) When in order to clarify any aspects related to the proceedings the Commission needs special expertise, it may, upon request of the parties or on its own initiative, by a ruling appoint the expertise to an external expert. In the ruling the Commission shall indicate the expert, the task of the expertise and the deadline for submission of expert’s report.

(2)

The expert cannot be a person interested directly or indirectly in the outcome of the proceedings.

(3)

The expert shall submit his/her report to the Commission and the Commission shall approve it with a ruling. Where the report is contested, the Commission may assign the assessment to one or more other experts.

(4)

Further examination shall be assigned where the expert’s report is not sufficiently complete and clear, and a new one – where it is not grounded and a doubt arises as to its correctness.

(5)

The Commission shall not be bound to adopt the report of the expert, but to consider it together with the other evidence collected on file during the proceedings.

Cooperation with the National Competition Authorities and the European Commission in Investigation

Article 54. (1) The Commission shall cooperate with the European Commission and the other national competition authorities of the Member States, by receiving and rendering assistance and exchanging information under the procedure set forth in Regulation (EC) No. 1/2003 and Article 11, paragraph (6), Article 12 and Article 13, paragraph (5) of Regulation (EC) No. 139/2004.

(2) The authority which shall use the information exchanged shall ensure the same degree of security as the one ensured by the national competition authority of the Member State, which has furnished this information.

Access to File

Article 55. (1) The parties and constituted interested third parties in the proceedings shall have the right to access any evidence, collected in the course of investigation with the exception of those containing production, trade or other secret, protected by law. No access shall be granted to internal documents of the Commission, including correspondence with the European Commission or with a national competition authority of a Member State of the European Union.

(2)

Any person, submitting information to the Commission in the course of proceedings shall identify the materials that are claimed to contain production, trade or other secret, protected by law and which should, therefore, be treated by the Commission as confidential. In such cases the person shall substantiate its claim and shall submit the same materials in a version in which all data considered to be confidential has been erased. Whenever the Commission considers that certain information is not confidential, it shall issue a ruling in this regard and inform the person of it. The ruling shall be subject to appeal under the procedure set forth in Article 64, paragraph (2).

(3)

Any material indicated to contain production, trade or other secret protected by law, may be disclosed and used by the Commission in case it is essential as evidence to the alleged infringement or in order to secure the right of defence of the respondent.

(4)

The procedure regulating the access, use and storage of documents constituting production, trade or other secret protected by law, shall be set out in the rules adopted by the Commission.

Interim Measures

Article 56. (1) If, during an investigation under Chapter Nine, there is sufficient evidence of an infringement, in urgent cases where there is a risk of serious and irreparable damage to competition, 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 of the practice by the undertaking or the association of undertakings, or impose other necessary measures, taking into account the objectives of this Law. The Commission may not impose measures which are of the competence of other authorities and are stipulated in other Acts.

(2)

The interim measures under paragraph (1) may be ordered at any time during the course of the proceedings. The Commission shall impose the interim measures with a reasoned ruling stating the objectives of the imposed measure and giving the grounds for its urgency. The ruling shall be subject to appeal under the procedure set forth in Article 64, paragraph (2). Appeal shall not suspend the application of the interim measure.

(3)

The term of effect of the interim measures shall be up to 3 months as of the time they are ordered. If necessary, the time limit may be extended under the procedure set forth in paragraph (2). The interim measures may have effect until the adoption of the Commission’s decision on the merits.

(4)

The Commission may revoke the interim measure also before expiry of the term of its effect where the illegitimate practice is terminated and the damage to competition is prevented.

Closing the Investigation

Article 57. (1) After closing the investigation, the case team shall present a report to the supervising member of the Commission, which shall contain the factual and legal analysis of the case as well as a proposal concerning the manner of conclusion of the proceedings.

(2) The supervising member of Commission shall inform the Chairperson of the completion of the investigation. The Chairperson shall issue a resolution scheduling a closed sitting of the Commission, at which the further course of the proceedings shall be decided.

Commission Sittings

Article 58. (1) The Commission sittings shall be open or closed.

(2) The parties may avail themselves of legal defence.

(3)

Submission of evidence in an open sitting of the Commission shall not be allowed unless it is newly discovered or newly originated.

(4)

The Commission may, at its discretion, call any external experts who have submitted expertise or other persons, state authorities or local government authorities to attend its open sitting.

Quorum

Article 59. (1) The sittings shall be considered valid where at least four members of the Commission are present.

(2) The Commission shall pass decisions and rulings with an open vote and a majority of four votes. In case that the sitting is attended by less than seven members, the decision, the ruling respectively, shall be passed only if for the same at least 4 of the members of the Commission cast their votes.

Commission Decisions

Article 60. (1) In a closed sitting the Commission shall adopt a decision whereby it shall:

1. order the initiation of an in-depth investigation;
2. establish the infringement committed and the infringer;
3. impose pecuniary sanctions, periodic sanctions and/or fines;
4. exempt from sanction or reduce the amount of the sanction in compliance with Article

101.

1. establish that no infringement has been committed under this Law or that there is no ground for taking actions for committed infringement under Article 81 and Article 82 of the Treaty establishing the European Community;
2. terminate the proceedings;
3. reopen the proceedings terminated under Article 75, paragraph (2);
4. approve commitments undertaken and define the period for their implementation;
5. exempt certain categories of agreements, decisions or concerted practices from the prohibition under Article 15;
6. rule that the respective decision on block exemption shall not apply to the specific case and shall specify a time limit within which the parties must bring their agreement into compliance with Article 17 or terminate it;
7. withdraw the application of an EU Regulation on block exemption from the prohibition of Article 81, paragraph (1) of the Treaty establishing the European Community in case that the conditions under Article 29 of Regulation (EC) 1/2003 are present and specify a time limit within which the parties have to bring their agreement into compliance with Article 81, paragraph (3) of the Treaty establishing the European Community or terminate it;
8. order the termination of infringements, including by imposing appropriate behavioural and/or structural measures to restore competition;
9. resolve that a transaction does not constitute concentration or does not fall within the scope of the prior notification obligation;
10. authorise a concentration;
11. authorise a concentration with commitments proposed by the parties;
12. authorize a concentration under condition;
13. prohibit a concentration;
14. revoke the decision authorizing a concentration;
15. propose to the relevant competent authorities to amend or repeal the relevant administrative act;
16. adopt opinions on draft legislative and administrative acts;
17. approve the results of a sector inquiry conducted;
18. require rendering of assistance;
19. require termination of proceedings on rendering of assistance;
20. resolve on any other matters within its competence.

(2) The Commission shall prepare and announce its decision with the reasons thereto within 14 days after holding its closed sitting under paragraph (1). The decision shall be reasoned and signed by the members of the Commission who have voted at the closed sitting.

Dissenting Opinion

Article 61. (1) A member of the Commission who dissents with the decision shall sign it with a dissenting opinion.

(2) The dissenting opinion and its reasons shall be attached to the decision.

Contents of the Decision

Article 62. (1) The decision of the Commission shall be in written form and shall contain:

1. the name of the authority which has issued it;
2. the grounds of fact and law for its adoption;

1. an order which shall establish the existence or lack of an infringement under this Law; the existence or lack of grounds to take actions for committed infringement under Article 81 and Article 82 of the Treaty establishing the European Community; determine the rights and obligations of the parties as well as the type and amount of the pecuniary sanction or fine, if such is imposed;
2. the authority before which and the time limits within which the decision may be appealed.

(2) The decision shall also specify a period for voluntary execution of the imposed pecuniary sanction or fine.

Commission’s Ruling

Article 63. The Commission shall issue a ruling when it rules on issues which are not related to the merits of the dispute, unless otherwise provided for in this Law.

Appeals of Decisions and Rulings

Article 64. (1) The decisions of the Commission, unless otherwise provided for in the Law, may be appealed before the Supreme Administrative Court in respect of their conformity with the law by the parties to the proceedings or by any third person that has legal interest. Decisions shall be appealed within a term of 14 days, which shall start as of their notification in accordance with the procedure laid down in the Code of Administrative Procedure, and in respect of third parties – as of the date of their publication in the electronic register of the Commission.

(2) The rulings of the Commission for which this is provided in the Law, shall be subject to appeal by the parties to the proceedings before the Supreme Administrative Court, in respect of their conformity with the law. The rulings shall be subject to appeal within 7 days of their notification in accordance with the procedure laid down in the Code of Administrative Procedure.

Entry into Force of Decisions and Rulings

Article 65. (1) The decisions and rulings of the Commission shall enter into force when:

1. they are not subject to appeal;
2. they have not been appealed within the period provided for under Article 64 or the appeal was withdrawn;
3. the appeal lodged has been dismissed.

Enforcement of decisions

Article 66 (1). The decisions of the Commission, which prohibit a concentration among undertakings or order the termination of an infringement, including by imposing behavioural and/or structural measures to restore competition, shall be subject to immediate enforcement.

(2) On the basis of request by the parties to the proceedings, the Commission may order immediate enforcement of the acts under Articles 82, 85 and 88.

Control on the Implementation of Decisions

Article 67. The parties shall be obliged to duly inform the Commission of the implementation of a decision, in the event it stipulates certain conditions or obligations.

Electronic Register

Article 68. (1) The Commission shall maintain an electronic register of the acts it has issued.

(2)

All decisions of the Commission concluding the proceedings as well as all decisions to open an in-depth investigations of concentrations under Article 82, paragraph 3, item 4 shall be published in the register.

(3)

Announcements of initiated proceeding for authorization of concentrations under Chapter Five and for investigations under Chapter Nine and Twelve shall also be published in the register.

(4)

The decisions under paragraph (2) shall be published within 14 days as of their adoption, and the announcements under paragraph (3) – within 7 days as of the initiation of the proceedings or of the inspection under Article 50.

Fees and Costs

Article 69 (1) State fees and costs shall be due with regard to the proceedings under this Law. The state fees shall be approved by the Council of Ministers.

(2)

State authorities and local government institutions shall be exempt from fees but not from costs in the proceedings.

(3)

The amounts for remuneration of external experts and specialists shall be deposited in advance by the requesting party in an amount determined by the Commission.

(4)

Where the Commission issues a decision establishing an infringement under this Law, the Commission shall order the infringer to pay the costs of the proceedings, if so requested by the other party. If no infringement is established, the costs shall be borne by the parties who incurred them.

Chapter Nine

PROCEEDINGS TO ESTABLISH INFRINGEMENTS AND IMPOSE SANCTIONS UNDER CHAPTERS THREE AND FOUR OF THIS LAW AND UNDER ARTICLES 81 AND 82 OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY

Contents of the Application

Article 71. (1) The application under Article 38, paragraph 1, item 3 shall be submitted in Bulgarian and shall contain:

1. the name/title and particulars of the registration/personal identification number of the applicant and the person against whom the complaint has been brought;
2. the address /registered office and business address of the applicant and of the person against whom the complaint has been brought;
3. description of the circumstances upon which the complaint is based and the alleged infringement;
4. details of the form of protection sought;
5. evidence in support of the application;
6. signature of the person who files the application or of its authorised representative;
7. receipt for the state fees paid.

(2) The application under paragraph 1 shall be submitted in a model form, adopted by the Commission.

Investigation

Article 72. The Commission shall conduct investigation on the case, exercising the powers vested in it under Article 45.

Report of the Case team

Article 73 (1). After having collected sufficient evidence with regard to the further course of the proceedings, the case team, appointed according to Article 39, paragraph (2), shall prepare a report and submit it to the supervising member of the Commission.

(2) The supervising member of the Commission shall inform the Chairperson of the submitted report. The Chairperson shall issue an order scheduling a closed sitting of the Commission within 14 days as of the completion of the investigation, at which the further course of proceedings shall be decided.

Closed sitting

Article 74 (1) After having reviewed the report under Article 73, at a closed sitting the Commission shall:

1. adopt a decision establishing that no infringement has been committed or that there are no grounds to take actions for an infringement committed under Article 81 and Article 82 of the Treaty establishing the European Community;
2. adopt a ruling to referring the case back for additional investigation, giving mandatory instructions to the case team, appointed according to Article 39, paragraph (2);
3. adopt a ruling to submit the Statement of objections for an alleged infringement of the Law to the defendant.

(2)

The ruling under paragraph (1), item 3 shall specify a deadline, not shorter than thirty days, within which the complainant and the defendant shall have the right to submit their written objections on the submitted Statement of objections, and the constituted interested third parties – their observations. The ruling shall state that the parties and the interested third parties shall have the right of access to the file as laid down in Article 55 as well as the right to be heard in an open sitting of the Commission as laid down in Article 76.

(3)

In the cases under paragraph (1), item 3, the complainant and the defendant shall be provided with a version, which does not include production, commercial or other secret, protected by law, of the parties to the ruling, while the constituted interested third parties shall be informed of the ruling of the Commission issued under paragraph (1), item 3. The period within which objections and observations under paragraph (2) may be presented shall run from the day of receipt or written notice of the ruling.

(4)

The parties shall be obliged to accompany their objections with all evidence at their disposal in their support.

(5)

In cases under paragraph (1), item 1, the parties shall be notified of the decision of the Commission and of their right of access to the file as laid down in Article 55.

Undertaking of Commitments by the Party Subject to the Proceedings

Article 75. (1) The respondent under Article 74, paragraph (2) may propose to undertake commitments with the aim of terminating the conduct, in respect of which the proceedings were initiated.

(2)

The Commission may approve these commitments by a decision. In such cases the Commission shall terminate the proceedings without establishing an infringement, concluding that there are no longer grounds for further proceedings. In its decision the Commission may prescribe the period within which the commitments shall be effective.

(3)

The Commission shall not adopt commitment decisions in cases of serious infringements of the Law.

(4)

The Commission may, acting upon a request or on its own initiative, reopen the proceedings, terminated pursuant to paragraph (2) where:

1. there has been a change in any of the circumstances on which the decision referred to in paragraph (2) was based;
2. the undertaking concerned fails to comply with the commitments undertaken;
3. it is established that the decision was based on incomplete, inaccurate, untrue or misleading information.

Hearing of the Parties and of the Interested Third Parties in an Open Sitting of the
Commission

Article 76.(1) The parties and any interested third parties shall have the right to be heard in an open sitting of the Commission before it takes a decision on the merits.

(2)

The Commission may, at its discretion, decide to hear other persons as well.

(3)

After the period for submission of objections and observations set by the ruling under Article 74, paragraph (1), item 3 expires, by an order the Chairperson shall schedule an open sitting, at which the Commission shall hear the parties and the interested third parties. The open sitting shall be scheduled for a day which shall not be earlier than 14 days after the deadline for submission of objections and observations on the submitted allegations for infringements. The parties and the interested third parties shall be notified of the scheduled open sitting at which they will be heard in compliance with the procedure laid down in the Code of Administrative Procedure.

(4)

The parties and any interested third parties, as well as the persons summoned under paragraph (2) shall be heard by the Commission in camera.

(5)

The sitting of the Commission shall start with dealing with the preliminary issues related to the procedure.

(6)

The parties and the interested third parties may be asked questions in an order, determined by the Chairperson.

(7)

When the Chairperson considers that all circumstances on the case have been clarified, he/she shall give the floor to the parties to make their pleas.

(8)

After any disputed matters of fact and law have been clarified, the Chairperson shall close the sitting.

Closed Sitting

Article 77. (1) After hearing the parties, the Chairperson shall schedule a closed sitting. At this sitting the Commission shall take a decision which shall:

1. establish the infringement committed and the infringer;
2. impose pecuniary sanctions, periodic sanctions and fines;

1. establish that no infringement of this Law has been committed, or that there are no grounds for taking actions for a committed infringement under Article 81 and Article 82 of the Treaty establishing the European Community;
2. order the termination of infringements, including by imposing the relevant behavioural and/or structural measures to restore competition;
3. withdraw the application of a block exemption decision to the specific case and specify a term to bring it into compliance with Article 17 or terminate it;
4. withdraw the application of an EU Regulation for block exemption from the prohibition of Article 81, paragraph (1) of the Treaty establishing the European Community to the specific case and specify a term to bring it into compliance with Article 81, paragraph (3) of the Treaty establishing the European Community or terminate it.

(2)

The Commission by a ruling may:

1. accept new allegations of a committed infringement of the Law under the procedure laid down in Article 74, paragraph (1), item 3;
2. refer back the case for additional investigation with mandatory instructions;

(3)

With its decision under paragraph (1) item 4, the Commission shall impose structural remedies only where there is no behavioural remedy which would have equivalent effect, or when such behavioural remedy which has equivalent effect would be more onerous for the respective undertaking than the structural remedy.

(4)

The parties shall be notified of the decision taken under paragraph (1) in accordance with the provisions of the Code of Administrative Procedure.

Chapter Ten

PROCEEDINGS FOR ISSUING OF AUTHORISATIONS OF CONCENTRATIONS
AMONG UNDERTAKINGS

Contents of the Notification

Article 79. (1) The notification of concentration under Article 78, paragraph 1 shall contain information about:

1. the undertakings participating in the concentration;

1. the undertakings and persons, exercising direct or indirect control over the undertakings participating in the concentration;
2. the undertakings on which control is exercised by the participants in the concentration within the meaning of Article 22, paragraph 3;

4. the nature , the legal form and the rationale of the concentration;

1. the relevant markets, in which the undertakings participating in the concentration operate;
2. the market shares and the aggregate turnovers of the undertakings participating in the concentration;

7. the barriers to entry in the relevant markets;

6. the main competitors, suppliers and customers.

(2)

The notification under paragraph (1) shall also contain a request to the Commission to authorise the concentration.

(3)

The notification shall be submitted in a form approved by the Commission.

(4)

The form under paragraph (3) and the instructions for its completion shall be approved with a decision of the Commission and shall be published on its web site.

Preliminary Investigation

Article 80. (1) After the Commission has initiated proceedings under Article 78, paragraph (1), the Commission shall assess the concentration in a preliminary investigation, exercising the powers conferred to it under Article 45, items 1, 2, 4 and 5.

(2)

Within 7 days of the announcement under Article 68, paragraph (3) each interested third party may submit information or observations on the competitive effect of the concentration on relevant market.

(3)

In assessing the concentration the following shall be taken into consideration: the position of the undertakings in the relevant market before and after the concentration, their economic and financial power, access to supply markets and markets of the relevant goods and services, the legal, administrative or any other barriers to entry.

Time Limits for Assessment of the Concentration in the Preliminary Investigation

Article 81. (1) The assessment in the preliminary investigation shall be accomplished within 25 working days within which the Commission shall pass a decision under Article 82, paragraph (3).

(2)

This period shall run from the working day following the day of initiation of proceedings.

(3)

Where the notification is stayed due to deficiencies under Article 38, paragraph (2) or if additional information needs to be provided by the notifying undertakings, the time limits set out in paragraph (1) shall be suspended.

(4)

Upon a request by the notifying parties, the Commission may extend the time limits set out in paragraph (1) with up to ten working days to allow drafting of proposals for changes to the concentration.

(5)

Notwithstanding whether the time limits set out in paragraph (1) have been extended on the grounds of paragraph (4), they shall be extended by another 10 working days from the day on which the notifying party submits to the Commission complete data on the proposed changes in the terms of the concentration.

Conclusion of the Assessment in the Preliminary Investigation

Article 82. (1) After conclusion of the preliminary investigation, the case team, appointed in application of Article 39, paragraph 2, shall prepare a report, which shall be submitted to the supervising member of the Commission.

(2)

The supervising member of the Commission shall inform the Chairperson that the preliminary investigation has been concluded. The Chairperson shall issue an order scheduling a closed sitting of the Commission, at which the further course of proceedings shall be decided.

(3)

The Commission at a closed sitting shall issue a decision, whereby it shall:

1. pronounce that the operation does not constitute a concentration or does not fall within the scope of Article 24;
2. authorise the concentration pursuant to Article 26, paragraph (1);
3. authorise the concentration, taking into account the changes, proposed by the participants in the concentration.
4. launch an in-depth investigation as laid out in Article 83.

(4)

The Commission may revoke its decision under paragraph (3), items 1-3 where the decision is based on incomplete, inaccurate, untrue or misleading information.

(5)

While the decision of the Commission under paragraph (3) is pending, no actions in fact and in law related to the intended concentration shall be allowed. This prohibition shall not be applied in case of a bid or series of transactions with securities, listed on regulated markets in financial instruments, by which control is acquired under the meaning of Article 22, paragraph (3) by different sellers provided that the Commission is notified in accordance with Article 24, paragraph (2) without delay, as well as that the person who acquired the securities does not exercise the voting rights attached thereto, except to the extent necessary to preserve the value of the investment made.

(6)

The Commission shall notify the parties under Article 78, paragraph (1) of its decision under paragraph (3), in the procedure laid down in the Code of Administrative Procedure, thereby giving them the opportunity to access and get acquainted with the materials collected on the case file.

(7)

The decision under paragraph 3, item 4 shall not be subject to appeal.

In-depth Investigation

Article 83. (1) An in-depth investigation of a concentration shall be carried out when, as a result of the assessment during the preliminary investigation, it is established that the concentration raises serious doubts that its implementation may result in the creation or strengthening of a dominant position and the effective competition on the relevant market would be significantly impeded.

(2)

Within 30 days of the publication of the decision to launch an in-depth investigation under Article 68, paragraph (2) any interested third party may submit information or observations at to the effect of the concentration on competition in the relevant market.

(3)

The Commission shall carry out in-depth investigations of concentrations exercising the powers conferred to it under Article 45.

Time Limits for Completion of the In-depth Investigation of a Concentration

Article 84. (1) The Commission shall complete the in-depth investigation and conclude the proceedings within four months of the publication of the decision in the electronic register under Article 68, paragraph (2). In cases of factual or legal complexity, the time limits may be extended by no more than twenty-five working days.

(2) In case of proposed remedies under Article 86, the time limits set out in paragraph (1) shall be further extended by fifteen working days. The extension of the time limits shall run from the day following the day, on which the Commission has received complete information with regard to the proposed remedies.

Closed Sitting

Article 85. Having collected sufficient evidence with regard to the further course of proceedings, the case team, appointed in application of Article 39, paragraph 2, shall prepare a report and submit it to the supervising member of the Commission.

(2) The supervising member of the Commission shall inform the Chairperson of the submitted report. The Chairperson shall issue an order thereby scheduling a closed sitting of the Commission, at which it shall:

1. authorize the concentration with a decision pursuant to Article 26, paragraph (1) or paragraph (2);
2. issue a ruling whereby it shall approve its preliminary conclusions on the effect of the concentration on competition.

(3)

The ruling under paragraph (2), item 2 shall specify a period, not shorter than 14 days, within which the notifying party and the interested third parties may submit their observations on the preliminary conclusions of the Commission. The ruling shall state that the parties and the interested third parties shall have the right of access to file as laid down in Article 55 and the right to be heard by the Commission as laid down in Article 87.

(4)

In the case under paragraph (2), item 2, the persons under Article 78, paragraph (1) shall be sent the ruling of the Commission, while any interested third parties, constituted as laid down in Article 43, paragraph (2), item 2 shall be notified of the issued ruling. The time limits for submission of observations pursuant to paragraph (3) shall run from the day of receipt of a copy of the ruling or a notification thereof.

(5)

The parties concerned and the interested third parties shall be obliged to accompany their observations on the preliminary conclusions with all evidence at their disposal in their support.

(6)

In the case under paragraph (2), item 1, the parties shall be notified as laid down in the Code of Administrative Procedure of the issued decision and the opportunity to access and get acquainted with the materials collected on the file.

Remedies

Article 86. (1) The Commission may impose remedies, directly related to the implementation of the concentration, which are necessary to maintain effective competition and mitigate the negative impact of a concentration on the affected market.

(2) The Commission may also adopt remedies under paragraph (1) which have been proposed by the parties under Article 78, paragraph (1).

Hearing of the Parties and of the Interested Third Parties in an Open Sitting

Article 87.(1) The parties and any interested third parties have a right to be heard in an open sitting of the Commission before it takes a decision on the merits.

(2)

After the period for submission of observations under Article 85, paragraph (3) expires, by an order the Chairperson shall schedule an open sitting, at which the Commission shall hear the parties and the interested third parties. The open sitting shall be scheduled for a day which shall not be earlier than 14 days after the deadline for submission of observations. The parties and interested third parties shall be notified of the scheduled open sitting at which they will be heard as laid down in the Code of Administrative Procedure.

(3)

The parties and the interested third parties shall be heard by the Commission in camera.

(4)

The sitting of the Commission shall start with dealing the preliminary issues related to the procedure.

(5)

The parties and the interested third parties may be asked questions in an order, determined by the Chairperson.

(6)

When the Chairperson considers that all circumstances on the case have been clarified, he/she shall give the floor to the parties to make their pleas.

(7)

After any disputed matters of fact and law have been clarified, the Chairperson shall close the sitting.

Conclusion of the In-depth Investigation

Article 88. (1) After hearing the parties, the Chairperson shall schedule a closed sitting. At this sitting the Commission shall take a decision which shall:

1. authorize the concentration;

2. authorize the concentration under the condition that remedies, directly related to the concentration and necessary to maintain effective competition and mitigate any negative effects of the concentration on the relevant market, are implemented;

3. prohibit the concentration.

(2)

While the decision of the Commission under paragraph (1) is pending, any actions in fact and in law related to the intended concentration shall be prohibited. This prohibition shall not be applied in case of a bid or series of transactions with securities listed on regulated markets in financial instruments by which control is acquired under the meaning of Article 22, paragraph (3) by different sellers provided that the Commission is notified in accordance with Article 24, paragraph (2) without delay, as well as that the person who acquired the securities does not exercise the voting rights attached thereto, except to the extent necessary to preserve the value of the investment made.

(3)

The Commission may revoke its decision under paragraph (1), items 1 and 2 where the decision is based on incomplete, inaccurate, untrue or misleading information as well as when the parties fail to implement the remedies specified in the decision of the Commission under paragraph 1, item 2.

(4)

The parties shall be notified of the decision taken by the Commission as laid down in the Code of Administrative Procedure.

Conclusion of Proceedings Initiated on Initiative of the Commission

Article 89. (1) When the Commission has initiated proceeding on its own initiative, in the cases under Article 78, paragraph (3), it may:

1. decide that there is no infringement of the obligations under Article 24;
2. impose pecuniary sanction for non-compliance with the obligation under Article 24 or impose relevant remedies under Article 90.

(2) The investigation under paragraph (1) shall be carried out as laid down in Chapter Eight and as set out in Article 74 and Article 76.

Measures to Restore Effective Competition

Article 90. The Commission may, irrespective of the pecuniary sanctions under Article 89, paragraph (1), item 2, impose to the participants in the operation other behavioural and/or structural remedies, required to restore effective competition, including by ordering the divestiture of merged capital, shares or assets and/or termination of the joint control, where it has established that:

1. an implemented concentration breaches a decision adopted pursuant to Article 88, paragraph (1), item 3, or
2. a concentration, which should be prohibited or authorized subject to conditions, has been implemented:

a) in violation of Article 24 or when the concentration has taken place in a manner and under conditions, which differ from the ones which were taken into consideration in issuing the decision pursuant to Article 82, paragraph (3), item 2 and item 3, Article 85, paragraph (2), item 1 and Article 88, paragraph (1), item 1;

b) in violation of the decision pursuant to Article 88, paragraph (1), item 2;

c) in case of authorization which has been revoked by a decision pursuant to Article 82, paragraph (4) or under Article 88, paragraph (3).

Chapter Eleven

OTHER PROCEEDINGS

Proceedings on Conducting a Sector Inquiry

Article 91. (1) The proceedings on conducting a sector inquiry of the competitive environment shall be initiated on the grounds of Article 38, paragraph (1), item 1.

(2)

The Chairperson shall issue an order assigning the supervision of proceedings to a member of the Commission. The investigation shall be carried out by the case team, appointed in application of Article 39, paragraph (2),

(3)

In performing the investigation the case team shall exercise the powers conferred by Article 45, items 1, 2, 4 and 5.

(4)

After completing the investigation the case team shall submit the report on the sector inquiry to the member of the Commission assigned to supervise the proceedings. The Chairperson shall schedule the review of the report in a closed sitting of the Commission.

(5)

The Commission shall adopt the report on the sector inquiry with a decision. In its decision the Commission may:

1. order the initiation of proceedings to establish an infringement under Article 15, Article 21 and Article 24 of this Law and/or under Article 81 and Article 82 of the Treaty establishing the European Community;
2. advise the competent state authorities, including the bodies of the executive branch and local government authorities of the need to adopt measures for improving the competitive environment in the relevant sector;
3. provide the report to the National Assembly and/or to the Council of Ministers to be used in preparing strategies, programmes, development plans for the relevant sectors of economy, etc.

(6) The decision of the Commission under paragraph (1), as well as the decision under paragraph (5) shall not be subject to appeal.

Proceedings Related to Competition Advocacy

Article 92. (1) The proceedings related to competition advocacy shall be initiated on the grounds of Article 38, paragraph (1), item 1, item 5 and item 8.

(2)

The Chairperson shall issue an order assigning the supervision of the proceedings to a member of the Commission. The investigation shall be carried out by the case team, appointed in application of Article 39, paragraph (2).

(3)

In performing the investigation the case team shall exercise the powers conferred by Article 45, items 1, 2, 4 and 5.

(4)

After completing the investigation the case team shall prepare a report, which shall be submitted to the member of the Commission assigned to supervise the proceedings. The Chairperson shall schedule the review of the report in a closed sitting of the Commission.

(5)

The Commission shall adopt an opinion with a decision whereby:

1. it shall assess the compliance of drafts or existing acts within the meaning of Article 28 with the provisions of this Law;
2. it shall propose to the competent authorities or to associations of undertakings to amend or repeal the relevant act;

(6) The decision of the Commission under Article 38, paragraph (1) item 1, as well as the decision under paragraph (5) shall not be subject to appeal.

Proceedings Related to the Implementation of the Commission’s Obligations for

Assistance under Regulation (EC) No. 1/2003 and Regulation (EC) No. 139/2004

Article 93. (1) The proceedings to complete the obligations for assistance under Regulation (EC) No. 1/2003 and Regulation (EC) No. 139/2004 shall be initiated on the grounds of Article 38, paragraph (1), item 7, in connection with Article 54, upon a request for assistance by a national competition authority of a Member State of the European Union or of the European Commission under Regulation (EC) No. 1/2003 as well as pursuant to Article 12 and Article 13, paragraph (5) of Regulation (EC) No. 139/2004.

(2)

Based on the request the director of the relevant directorate shall submit to the Chairperson a report, proposing the actions that need be undertaken to comply with the assistance request.

(3)

The Chairperson of the Commission, by an order, shall decide on the proposal for taking the necessary actions. In case the Chairperson orders assistance to be provided, in his/her order he/she shall determine the scope of the proceedings, in compliance with the request under paragraph (1).

(4)

By virtue of an order the Chairperson shall nominate the officials, who shall exercise the powers under Article 45 of this Law and respectively under Article 20, paragraph 2 of Regulation (EC) No. 1/2003 and Article 13, paragraph 2 of Regulation (EC) No. 139/2004.

(5)

After execution of the decision under paragraph (3), the director of the relevant directorate shall submit to the Chairman a report on the actions taken.

(6)

The Chairperson shall present the report under paragraph (5) at a closed sitting, at which the Commission shall adopt a decision whereby it shall terminate the proceedings for assistance.

(7)

The decision under paragraph (6) shall not be subject to appeal.

Chapter Twelve

PROCEEDINGS ON ESTABLISHMENT OF INFRINGEMENTS AND IMPOSITION OF SANCTIONS UNDER CHAPTER SEVEN

Initiation of Proceedings, Investigation and Completion of the Proceedings

Article 94 (1) The proceedings for establishment of infringement under Chapter Seven and imposition of sanctions shall be initiated on the grounds of Article 38, paragraph (1) items 1 and 3.

(2)

The request under Article 38, paragraph (1) item 3 must meet the requirements under Article 71, paragraph (1).

(3)

The Chairperson of the Commission by an order shall decide on initiation of the proceedings and shall determine a member of the Commission to supervise the investigation. It shall be conducted by the case team, appointed in application of Article 39, paragraph (2).

(4)

During the investigation the member of the Commission and the case team shall have the rights conferred under Article 45, items 1, 2 and 4.

(5)

After completion of the investigation, the case team shall prepare a report to be submitted to the supervising member of the Commission. The parties shall be notified under the procedure set forth in the Code of Administrative Procedure of the opportunity to access and get acquainted with the materials on file under the conditions of Article 55.

(6)

The Chairperson, by an order, shall schedule the examination of the report at an open sitting of the Commission at which the parties to the proceedings shall be heard. The Commission, at its discretion, may hear also third parties.

Burden of Proof

Article 95 In the cases under Article 32 it shall be upon the advertiser to prove that the advertisement does not contain any features which make it prohibited.

Terms

Article 96 (1) The investigation under this Chapter shall end within two months as of initiation of the proceedings.

(2) In cases presenting factual and legal complexity, the time limit under paragraph (1) may be extended by 30 days.

Interim Measures

Article 97 (1) On application by the parties or on its own initiative, when there is a risk of serious injury to the interests of consumers or of competitors, the Commission may, at any time during the proceeding, impose an interim measure, by:

1. prohibiting the distribution of an advertisement before it becomes known to the public when the advertisement is not yet distributed, but its distribution is forthcoming and inevitable;

2. stopping the distribution of the advertisement.

(2) The interim measure under paragraph (1) shall be imposed with a ruling subject to immediate enforcement. The interim measure shall be applied until the taking of the decision of the Commission on the merits. The ruling can be appealed against before the Supreme Administrative Court within 7 days as of its announcement under the procedure set forth in the Code of Administrative Procedure. The appeal shall not suspend the enforcement of the ruling except if the court rules otherwise.

Decision of the Commission

Article 98 (1) In connection with the proceedings under Chapter Seven, the Commission shall adopt a decision by which:

1. it establishes the committed infringement and the infringer and imposes a pecuniary sanction or a fine;
1. it orders the termination of the infringement;
2. it establishes that there is no infringement of the Law;
1. it terminates the proceedings under the conditions of Article 41, items 1, 2 and 4, as well as on withdrawal of the application.

(2)

The Commission may, notwithstanding the pecuniary sanctions for infringement under Article 32, rule the advertiser and/or the advertising agency to publicize at its expense and in a suitable manner, the decision under paragraph (1) item 1 or part thereof, as well as the respective corrected advertisement.

(3)

When the proceeding is initiated on information submitted by a third party, the person who submitted the information shall be notified of the decision taken by the Commission.

(4)

The decision under paragraph (1) shall not be an obstacle for lodging a claim before the court under the procedure set forth in Chapter Thirty Three “Class Action Procedure” of the Civil Procedure Code.

Title Four

Administrative Penal Liability

Article 99. (1) In case of infringement of the provisions of this Law, where the act does not constitute a crime, administrative penal liability shall be borne.

(2) The pecuniary sanctions and fines under this Law shall be imposed by a decision of the Commission which shall be subject to appeal before the Supreme Administrative Court in respect of its legality under the procedure set forth in the Code of Administrative Procedure.

Chapter Fourteen

SANCTIONS

Pecuniary Sanctions

Article 100. (1) The Commission shall impose a pecuniary sanction in an amount not exceeding 10% of the total turnover in the preceding financial year on an undertaking or an association of undertakings for:

1. infringement under Articles 15 or 21 of this Law or of Article 81 or Article 82 of the Treaty establishing the European Community;
2. a concentration, implemented following failure of the parties to comply with the obligation under Article 24;

1. a concentration, implemented under conditions and in a manner, which differ from the ones which were taken into consideration in issuing the decision, pursuant to Article 82, paragraph (3), items 2 and 3; Article 85, paragraph (2), item 1 and Article 88, paragraph (1), item 1 and item 2;
2. a concentration implemented, despite its prohibition by the Commission under Article 88, paragraph (1), item 3.
1. a concentration, which being subject to mandatory prior notification under Article 24, was implemented prior to the decision of the Commission under Article 82, paragraph (3), Article 85, paragraph (2) item 1 and Article 88, paragraph (1), unless the hypotheses under Article 82, paragraph (5), second sentence and Article 88, paragraph (2), second sentence were present;
1. infringement under Chapter Seven of this Law;
2. failure to comply with decisions or rulings of the Commission.

(2) The Commission shall impose a pecuniary sanction in the amount of 1% of the total turnover in the preceding financial year on an undertaking or associations of undertakings for:

1. failure to comply with the obligations to provide assistance under Article 46;

1. damaging the integrity or destroying the seals which have been placed during the inspections under Article 50.
2. delayed submission of information or furnishing of information which is incomplete, inaccurate, untrue or misleading breaching the obligations under Article 47, paragraphs (4) and (5);

4. failure to comply with the obligations under Article 67.

(3)

The decision by which the pecuniary sanction under paragraph (2), items 1 and 3 is imposed, shall specify the period within which the relevant party shall fulfil its assistance obligation or furnish complete, accurate, true and not misleading information.

(4)

In determining the amount of the pecuniary sanction the gravity and duration of the infringement shall be taken into account as well as the circumstances mitigating or aggravating the liability. The exact amount of the sanction shall be determined in compliance with a methodology adopted by the Commission published in the web-page of the Commission.

(5)

The Commission shall impose periodic pecuniary sanctions on an undertaking or association of undertakings to the amount of up to 5 percent of the average daily turnover in the preceding financial year for each of failure to comply with:

1. a decision of the Commission ordering the termination of an infringement, including by imposing the appropriate behavioural or structural remedies as laid down in Article 77, paragraph (1), item 4 or Article 90;
2. 2. a ruling of the Commission, imposing interim measures under Article 56;
1. a decision of the Commission to approve commitments undertaken pursuant to Article 75, paragraph (2) or under Article 88, paragraph (1), item 2.

(6) The Commission shall impose periodic pecuniary sanctions on an undertaking or association of undertakings to the amount of up to one percent of the average daily turnover for the preceding financial year for each day of:

1. failure to comply with the obligation for assistance under Article 46 after expiry of the period specified in the decision under paragraph (3);
2. failure to furnish complete, accurate, true and not misleading information under Article 47, paragraph (5), after the expiry of the period specified in the decision under paragraph (3).

3. impeding an inspection under Article 50.

(7) The periodic sanctions under Articles 5 and 6 shall be imposed for each day until the unlawful action or omission is terminated.

Immunity from Sanction and Reduction of Sanctions

Article 101. (1) The Commission may, upon an application of an undertaking under Article 38, paragraph (1), item 4, grant immunity to it from the pecuniary sanction for an infringement under Article 15 of this Law and/or Article 81 of the Treaty establishing the European Community, consisting of its participation in secret cartel, on condition that such undertaking provides prior to any other participant in the cartel, evidence on the basis of which the Commission may:

1. carry out an inspection; it is necessary that up to that moment the Commission did not already have sufficient data and evidence in order to file an application for issuance of court authorization under the procedure set forth in Article 51;
2. prove the alleged infringement; it is necessary that as up to that moment the Commission did not already have granted to another undertaking a conditional immunity from sanctions prior to making the inspection or prior to having sufficient data in order to file an

application for issuance of court authorization under the procedure set forth in Article 51, as well as did not already have sufficient evidence in order to adopt a decision for finding of an infringement.

(2)

In addition to the conditions under paragraph (1), in order to receive immunity from pecuniary sanction, the undertaking should not have taken steps to coerce other undertakings to join the cartel and must have fulfilled all conditions laid down in the programme under paragraph (5)

(3). The Commission may reduce the amount of the pecuniary sanctions, imposed on an undertaking for an infringement under Article 15 of this Law and/or Article 81 of the Treaty establishing the European Community, consisting of participation in secret cartel, if such undertaking voluntary provides before the conclusion of the proceedings, evidence, which has significant added value for proving the infringement and fulfils all conditions set out in the leniency programme under paragraph (5).

(4)

The granting of immunity from sanction or reduction of the sanction for infringement under Article 15 of this Law and/or Article 81 of the Treaty establishing the European Community may be granted provided that the undertaking has terminated its participation in the prohibited agreement except where the Commission has decided that the continuation of this participation is necessary for the investigation.

(5)

The terms and procedure for the granting of immunity or reduction of the sanctions shall be set out in a Leniency Programme and the Rules on its application, adopted by a decision of the Commission.

Fines

Article 102. (1) Natural persons who have assisted in the commitment of infringements of the provisions of this Law, where the act does not constitute a crime, shall be liable to a fine of BGN 500 to BGN 50,000 .

(2)

Persons who fail to submit in time the evidence requested or fail to supply complete, accurate, trustworthy and not misleading information under Article 47, paragraph

(5)

shall be liable to a fine of BGN 500 to BGN 25,000.

(3)

The decision, whereby the fine referred to in paragraph (2) is imposed, shall state the time limits, within which the requested evidence and information should be presented. In case of failure to comply with the time limits to the person may be imposed a periodic fine to the amount of BGN 500 per day but not exceeding BGN 20,000.

(4)

When determining the amount of the fine the gravity and the duration of the infringement, the capacity in which the person has acted, as well as the mitigating and aggravating circumstances shall be taken into consideration. The precise amount of the fine shall be determined by the Commission in accordance with the Methodology under Article 100, paragraph (4)

Enforcement

Article 103. The pecuniary sanctions and fines imposed based on decisions of the Commission which have come into force shall be collected in accordance with the procedure laid down in the Tax and Social Security Procedure Code.

Claims for Damages

Article 104. (1) For damages caused as a result from committed infringements of this Law the person at fault shall owe an indemnity.

(2)

Entitled to an indemnity shall be all natural persons and legal entities who have suffered damages even where the infringement has not been directed against them.

(3)

The claims for indemnity shall be lodged under the procedure set forth in the Civil Procedure Code.

(4)

The decision of the Supreme Administrative Court which has entered into force, and which upholds a decision of the Commission finding a committed infringement of this Law, shall be binding upon the civil court as regards the fact whether the decision of the Commission is valid and compliant with the law. A decision of the Commission, which has not been appealed against or the appeal application against it has been withdrawn, shall have binding force upon the civil court as well. In these cases the right to claim indemnity shall lapse by limitation within 5 years as of the coming of the decision of the Supreme Administrative Court or of the Commission into force.