Merger control in Bulgaria: overview
A Q&A guide to merger control in Bulgaria.
The Q&A gives a high level overview of merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in Bulgaria. It also covers notification requirements, procedures and timetables, publicity and confidentiality, third party rights, substantive test, remedies, penalties, appeals, joint ventures and proposals for reform.
For information on restraints of trade, monopolies and abuses of market power in Bulgaria, visit Restraints of trade and dominance in Bulgaria: overview.
This Q&A is part of the multi-jurisdictional guide to competition and cartel leniency. For a full list of jurisdictional Merger Control Q&As visit www.practicallaw.com/mergercontrol-mjg. For a full list of jurisdictional Restraints of Trade and Dominance Q&As visit www.practicallaw.com/restraintsoftrade-mjg.
For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-mjg.
Mergers and acquisitions (concentrations of economic activity) are subject to merger control in Bulgaria. The following legislation regulates the area:
Act on Protection of Competition (APC).
Code of Administrative Procedure.
Secondary legislation and internal rules of the Commission for Protection of Competition (CPC), consisting of:
its organisational rules;
the filing fee tariff for notification of transactions;
its rules on how documents concerning production, trade or other secrets protected by law can be used, accessed and kept;
its methodology for investigating and determining market position;
its methodology for the determination of fines;
the CPC-approved notification form and the guidelines for submitting the form.
The merger control regime applies to concentrations, which occur when a change of control on a lasting basis results from (Article 22, APC):
The merger of two or more previously independent undertakings or parts of undertakings.
The acquisition of direct or indirect control of the whole or parts of one or more undertakings by one or more other undertakings (or by one or more persons) that already control at least one other undertaking. The acquisition of direct or indirect control can occur by the purchase of shares, securities or assets, or in any other way.
The establishment of a joint venture performing on a lasting basis all functions of an independent economic entity (see Question 15).
Concentrations must be notified if the aggregate turnover in Bulgaria of all undertakings participating in the transaction exceeds BGN25 million for the preceding financial year and either:
Each one of at least two undertakings participating in the transaction had a turnover in Bulgaria exceeding BGN3 million in the preceding financial year.
The undertaking(s) being acquired had a turnover of more than BGN3 million in the preceding financial year.
Mandatory or voluntary
Notification is mandatory if the relevant thresholds are met (see Question 2).
Notification must be made before any implementation of the relevant transaction and after one of the following:
Conclusion of the contract. The contract can be, for example, a share purchase agreement, merger contract, and so on. Usually, this is a binding contract where one of the conditions precedent would be obtaining a clearance from the CPC.
Public announcement of a bid.
Acquisition of control in any other way.
The CPC may, exceptionally, accept for assessment a concentration notification at an earlier stage where the participating parties have provided strong evidence of their intention to carry out the transaction, or announced in advance their intention to launch a public tender offer (Article 24(2), APC).
In practice, the notification process for a concentration would normally take up to two months from the initial filing date, unless the CPC decided to open an in-depth investigation. Therefore, there would be a gap between the date of conclusion of a contract leading to a concentration of economic activity and the moment when the concentration may be implemented.
The parties to the transaction can obtain guidelines on how to complete the notification form. These guidelines are published on the CPC's website (see box, The regulatory authority).
Responsibility for notification
Notification must be made by:
All merging undertakings in case of a merger.
The party acquiring control in the case of an acquisition of sole or joint control.
Notification must be made to the CPC.
Form of notification
There is a CPC approved notification form in Bulgarian, which specifies required content and attachments. This can be downloaded from the CPC website (see box, The regulatory authority). Any attachments to the form should be translated into Bulgarian and certified if necessary.
The filing fee is BGN2,000. A further fee is payable on clearance of the transaction; this amounts to 0.1% of the aggregate turnover of all participating undertakings in the preceding year, up to a maximum fee of BGN60,000.
Obligation to suspend
Following notification, the transaction must be suspended until the CPC makes its final decision. However, this obligation does not apply if the CPC has been notified without delay and either:
A person or undertaking buys securities in a tender offer or series of transactions, and the acquired securities have no voting rights (apart from rights to preserve the value of those securities).
The notifying party has requested that they be allowed to complete the concentration pending the outcome of the investigation, based on relevant provisions of the Code of Administrative Procedure (in practice, the CPC deals with such requests when it makes its decision on the merits of the notification). This means that the merger may be implemented after the CPC clearance even if an interested party has appealed the clearance decision before the SAC (see Question 12, Third party rights of appeal).
Procedure and timetable
Phase I investigation
The CPC commences its investigation within three days of submission of a complete notification (if any required information and/or documents are missing, the CPC advises the parties of this, and gives them seven days to submit additional material).
The notification is published on the CPC website within seven days of the start of the investigation.
The CPC's investigation must be completed within 25 working days. This can be extended by ten days where the notifying parties propose changes to the concentration.
At the conclusion of its investigation, the CPC either:
Clears the transaction (this can be subject to conditions).
Announces that it will undertake an in-depth investigation, which must begin within 14 days of this announcement.
Phase II in-depth investigation
The CPC publishes a notice of opening an in-depth investigation in the CPC's electronic register. Interested third parties are entitled to submit information or statements regarding the expected effect of the concentration on the relevant markets within 30 days from the date of publication notice. Interested third parties can submit a reasoned request to be joined to the proceedings within 30 days from the date of publication notice.
During the in-depth investigation, the CPC's experts working on the investigation must prepare a report and submit it to the CPC member appointed to monitor the case. The monitoring CPC member informs the CPC Chairman and the Chairman convenes the CPC in a closed session where the CPC either:
Clears the concentration.
Issues a preliminary ruling on the expected effects of the concentration, where the substantive test is met (see Question 7).
Where the CPC issues a preliminary ruling, it notifies it to the applicants and any joined interested parties. The applicants and joined interested parties have at least 14 days to submit opinions on the preliminary ruling (Article 85(3), APC). At the expiry of the deadline for submission of statements the CPC holds a hearing of the applicants and the interested parties. The hearing should be held at least 14 days after the deadline for submission of statements. The CPC also holds a closed session and makes a decision within 14 days following the closed session (Article 60(2), APC). In that closed session, the CPC decides whether to:
Clear the concentration, with or without conditions, where the transaction will have certain positive effects (see Question 7).
Prohibit the concentration.
The in-depth investigation must be completed within four months from the date of notice of publication. If the matter is technically complex, this period can be extended by an additional 25 working days. If the parties propose remedies for clearance of the transaction the investigation deadline can be extended by a further 15 days. The parties can propose remedies for clearance at any time.
The decision must be published in the CPC's electronic register within 14 days of its announcement (see Question 5).
The above procedure and timetable also apply to investigations undertaken by the CPC on its initiative.
For an overview of the notification process, see flowchart, Bulgaria: merger notifications.
Publicity and confidentiality
The CPC maintains a public electronic register which publishes non-confidential versions of the following documents and information on concentrations under investigation (Article 68, APC):
Announcement of the commencement of an investigation by the CPC.
Any decision of the CPC:
that determines that a notified transaction does not fall within the legally defined scope of a concentration;
that clears a concentration if either:
that clears a concentration subject to certain conditions;
to begin an in-depth investigation into a concentration;
that prohibits a concentration.
Other documents and information collected during the investigation are available to the participants in the concentration and any other interested third parties in the CPC's offices.
A notice by the CPC to begin an investigation is published within seven days of the start of the proceedings.
The CPC's decisions (see above, Publicity) should be published in the electronic register within 14 days of their making.
The CPC automatically keeps the following information confidential:
Its internal documentation on the investigation.
Information deemed confidential by law, such as personal information on individuals (under the Personal Data Protection Act), classified information (under the Classified Information Protection Act) and so on.
Confidentiality on request
A party providing required information to the CPC can request that certain information be kept confidential. The request should only relate to information about production and commercial secrets (for example, technical or financial information, know-how, production processes, market shares, marketing plans and so on). Reasons for the request should be provided, including an explanation of why the information is confidential and how its disclosure will damage, for instance, the relevant undertaking, its employees and so on.
Rights of third parties
Once the CPC has published a decision to commence a Phase I investigation, interested third parties have seven days to submit written opinions or information regarding the likely effects of the concentration (see Question 4, Phase I investigation).
Where the CPC opens Phase II in-depth investigations third parties can submit statements and/or information within 30 days following the publication of the CPC notice. Within this 30-day period, the CPC can also join an interested third party to the proceedings, based on a reasoned request from that third party (see Question 4, Phase II in-depth investigation).
Joined third parties can submit opinions on the preliminary ruling.
The CPC's investigation file can only be accessed by the parties to the concentration and interested third parties who have been added as parties to the investigation proceedings. However, documents marked confidential can only be accessed by the CPC.
The parties to the concentration and any other parties to the proceedings have the right to be heard at closed hearing. The CPC can also invite experts, state authority representatives, and so on to submit information and expert reports. The CPC must hold a closed hearing at least 14 days after the deadline for the submission of written opinions has passed (see above, Representations and Question 4, Phase II in-depth investigation).
The substantive test is whether the concentration would establish or strengthen a market dominant position that would significantly impair effective competition in the relevant market(s) (Article 26(1), APC).
According to the CPC's internal regulations and its previous decisions, there is a rebuttable assumption that competition in the relevant market is unlikely to be significantly impaired or restricted if the concentration would have a market share of less than:
15%, where the undertakings party to the transaction are competitors.
25%, where the undertakings party to the transaction are not competitors.
The CPC can approve a concentration that would establish or strengthen a market dominant position even if it significantly impaired competition in the relevant market if the positive effects of the concentration are expected to outweigh the negative impact on competition and the transaction aims to do all of the following:
Modernise the relevant economic sector.
Improve the structure of the relevant market.
Promote consumers' interests.
Remedies, penalties and appeal
The CPC can impose any conditions of clearance that it finds necessary to preserve effective competition including structural and behavioural remedies. The CPC may impose, for example, remedies consisting of removal of connections between competitors, such as:
Termination of distribution agreements between competitors.
Sales of minority shareholdings in a joint venture.
The parties can also propose such remedies, which are subject to the CPC's approval, in order to be implemented. Such remedies may be proposed either during the initial investigation or during an in-depth investigation (see Question 4).
Failure to notify correctly
If a concentration is wilfully notified incorrectly, the following penalties apply:
Undertakings: a fine of up to 1% of the total turnover of the participating undertakings for the preceding financial year (Article 100(2), item 3, APC).
Individuals: a fine of between BGN500 to BGN25,000 (Article 102(2), APC).
Failure to notify
If a concentration is not notified, the following penalties apply:
Undertakings: a fine of up to 10% of the total turnover of the participating undertakings for the preceding financial year (Article 100(1), APC).
Individuals: a fine of between BGN500 to BGN50,000 (Article 102(1), APC).
Implementation before approval or after prohibition
The same penalties apply as for failure to notify.
Failure to observe
The same penalties apply as for failure to notify.
Rights of appeal
A decision or ruling made by the CPC can be appealed to the SAC, the only statutory exception being the CPC decision to begin an in-depth investigation, which cannot be appealed. In practice, no party would have a legal interest to appeal a decision that a planned transaction does not fall within the definition of a concentration, or a decision granting clearance of a concentration where no interested parties have been adjoined to the proceedings.
Any appeal to the SAC by the parties to the proceedings should be filed within 14 days of notification (announcement) of the CPC's decision.
Appeals are heard by three judges. A decision made by the SAC at first instance can in turn be appealed to a five-member chamber of the SAC, whose decisions are final.
Third party rights of appeal
Any interested third party can appeal a decision made by the CPC to the SAC within 14 days of the decision's publication in the CPC's electronic register. When filing its appeal, the third party should specify whether and to what extent the relevant decision affects its rights.
Automatic clearance of restrictive provisions
The law does not provide for the automatic clearance of restrictive provisions on clearance of a concentration.
The CPC can impose specific remedies in relation to any restrictive provisions contained in merger agreements. If it does not do so, then the law governing restrictive agreements and practices applies to the provision.
Regulation of specific industries
Concentrations in the banking and insurance sectors are specifically regulated. If a transaction in the banking or insurance sector would lead to an increased shareholding above certain thresholds, the acquirer of the shareholding must obtain the prior approval of the Bulgarian National Bank or the Financial Supervision Commission, respectively. If the acquirer does not obtain such approval, it cannot exercise the rights attached to the acquired shares.
There is no legal definition of joint venture. However, a joint venture is a concentration and is subject to merger control (provided the relevant thresholds are met) where it (Article 22(2), APC):
Is jointly controlled.
Carries out all the functions of an independent economic entity on a lasting basis.
Any anti-competitive conduct by a co-operative joint venture is examined under the rules on restrictive agreements and practices or abusive power.
Proposals for reform
The regulatory authority
Commission for Protection of Competition (CPC)
Head. Petko Nikolov, Chairman
Outline structure. The CPC is an administrative body consisting of seven members (including a chairman and a vice-chairman), who are elected by the Bulgarian National Assembly for a five-year term (Article 4(1), APC).
The CPC has five directorates and two analytical units attached to the Antitrust and Concentrations Directorate.
Responsibilities. The CPC enforces the APC, that is, it regulates mergers, restrictive agreements and practices, monopolies and abusive conduct. It is also the administrative appeal body for unfair competition cases.
The CPC is also a national competition authority (NCA) within the EU and applies EU competition law and co-operates with other NCAs.
In addition, the CPC hears appeals of decisions concerning public procurement and concessions' grants under the Public Procurement Act and the Concessions Act, respectively.
The Commission can impose interim measures when undertaking its activities.
Procedure for obtaining documents. Legislation and CPC documents (decisions, internal rules, announcements, press releases and so on) can be accessed from the CPC's website (most of the information is also available in English). Parties to proceedings have access to their case files (legal representatives or expressly authorised proxies can also review files and obtain documents).
Dinova Rusev and Partners Law Office
Professional qualifications. Member of the Bar of Stara Zagora, Bulgaria, 2000
Areas of practice. Competition law; IP; company and commercial law.
- Acting for Reckitt Benckieser in a dispute concerning the illegal imitation of branded consumer goods.
- Advising a large hotel operator on the restructuring of its activities in the Balkans' area.
- Representing a client before the CPC in merger clearance proceedings in respect of a debt restructuring deal.
Vesela Angelova Kabatliyska
Dinova Rusev and Partners Law Office
Professional qualifications. Sofia University St Kliment Ohridski, Bulgaria, 2009
Areas of practice. Competition law; employment law; company and commercial law; dispute resolution.
- Appeared in proceedings before the competition authorities related to misleading advertisements.
- Protection of a client's interests in product imitation and trade mark violation proceedings before the competition authorities.
- Advising a company with a dominant position in the Bulgarian market regarding distribution agreement issues arising at a regional level.
- Advising on merger clearance relating to an acquisition of companies.