The Bulgarian merger control rules are contained within the Law on Protection of Competition (promulgated in State Gazette No. 102/28.11.2008) (“LPC”). There are a number of notices providing guidelines issued by the Bulgarian Commission for Protection of Competition (“CPC”) such as Methodology of Investigation and Definition of the Market Position of Undertakings in the Relevant Market, Notification Form and the Guidelines for Submitting the Notification Form as well as the Methodology for Determination of the Pecuniary Sanctions and Fines under the LPC. Certain provisions of the Administrative Procedure Code are also applicable to the proceedings before CPC.

The Bulgarian merger control rules are harmonized with the Council Regulation No. 139/2004 on the control of concentrations between undertakings (“EU Merger Regulation”) and the corresponding EU legislation, having also direct application. The Bulgarian rules are also interpreted in line with the Commission Consolidated Jurisdictional Notice under the EU Merger Regulation as well as with other relevant notices adopted by the European Commission for the assessment of concentrations.

The CPC is the Bulgarian competent authority responsible for directly enforcing the LPC, Regulation No. 139/2004, the corresponding EU legislation as well as the respective notices issued by the Commission and CPC providing guidelines on the different aspects of concentrations.

The CPC consists of seven members being elected by the National Assembly (the Parliament) for a 7-year term of office – Chairperson, Deputy Chairperson and five members.

Eligible shall be Bulgarian citizens holding a university degree in law or economics and with at least five years’ experience in their field, with high professional accomplishments and moral integrity, who have never been convicted of premeditated offenses of general nature. They may not profit in any way whatsoever from undertakings or gainful employment, except in pursuing scientific, lecturing or arbitration activities.

The Chairperson of CPC shall possess a university degree in law with at least 10 years of experience in the field of law and must also meet the general requirements for eligibility set out in the preceding paragraph.

The European Commission has jurisdiction over concentrations with an EU dimension (as defined in the EU Merger Regulation).

LPC requires formal notification to be made before CPC prior to the implementation of the concentration if the thresholds envisaged in Article 24(1) of LPC are met (please refer to paragraph 8 below).

Detailed rules on the content of the notification are provided in the Notification Form and the Guidelines for Submitting the Notification Form under Article 79(3) of LPC approved by CPC by virtue of Decision No.1384/19.12.2019 (entered into force as of January 1, 2021), amended with CPC Decision No. 603/10.06.2021.

LPC “covers” any transaction that represents the concentration of economic activity. According to the Bulgarian merger control rules and Article 22(1) of the LPC, the concentration between undertakings exists when a permanent change of control occurs:

1. In cases of merger or amalgamation of two or more independent undertakings
2. One or several entities, already exercising control over one undertaking, acquire through the purchase of securities, interest in the capital or assets, by contract or otherwise, direct or indirect control of the whole or parts of one or more other undertakings, or
3. Where there is a joint undertaking established performing on a permanent basis all functions of an economically independent unit.

LPC also provides for some exceptions where the concentration of economic activity will not take place and concentration shall not be deemed to arise where:

Credit and other financial institutions or insurance companies, the normal activities of which include transactions and dealing in securities for their own account or for the account of third parties, hold on temporary basis security which they have acquired in an undertaking with a view to reselling them, provided that i) they do not exercise voting rights in respect of those securities with a view to determining the competitive behavior of that undertaking or ii) provided that they exercise such voting rights only with a view to preparing the disposal of all or part of that undertaking or of its assets or 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 an office-holder according to the effective law relating to liquidation or bankruptcy;
2. The operations referred to in Article 22(3) of LPC (i.e. establishment of a joint undertaking performing on a permanent basis all functions of an economically independent unit) are carried out by the financial holding companies, provided that the control gained by the holding is exercised solely for the purpose of maintaining the full value of the investment and not for the purpose of directly or indirectly determining the competitive policy of the undertakings where the holding participates.

The main criteria for whether notification would be due is not the amount of the investment made and/or the total number of shares acquired (either a minority or majority shareholding), but whether a permanent change of control will occur after the acquisition of the target undertaking(s) as per Article 22(1) of the LPC.

If the minority shareholder is conferred with “decisive influence” (e.g. provides veto rights in relation to strategic commercial decisions, rights to manage the affairs of the target, rights over the decisions regarding the budget, etc.) or the transaction results in exerting joint control over the target undertaking (de jure control), notification would be necessary.

The legal concept of “control” under the LPC and EU Merger Regulation means (a) the acquisition of rights, (b) the conclusion of contracts or (c) other courses of action which, independently or jointly, and in view of the existing factual circumstances and applicable law, enable the exerting of decisive influence over a certain undertaking.

Furthermore, the transaction may also result in the exertion of de facto control by a minority shareholder if, for instance, the remaining voting rights are widely spread which would again require a merger notification to be made before CPC.

CPC in its practice has considered that such transactions should be notified and it is competent to clear even transactions involving undertakings not established in Bulgaria by any means, as long as they have sales directly or via distributors in the Bulgarian market.

An obligation to notify CPC would be at hand if the following jurisdictional thresholds envisaged in Article 24(1) of LPC are met:

1. The total turnover (net sales revenues) of all the undertakings participating in a concentration on the territory of the Republic of Bulgaria for the previous financial year exceeds BGN 25 million and
2. Either i) the turnover of each of at least two of the undertakings participating in the concentration on the territory of the Republic of Bulgaria for the previous financial year exceeds BGN 3 million, or ii) the turnover of the undertaking which is the object of acquisition on the territory of the Republic of Bulgaria for the previous financial year exceeds BGN 3 million.

Provided that the jurisdictional thresholds are met, filing is mandatory.

Undertakings that violate the prohibition to implement a transaction prior to obtaining clearance (i.e. failure to give notice of a concentration) are subject to administrative fines of up to 10% of the aggregate group worldwide turnover for the preceding business year. In the course of determining the fine, CPC takes into account such factors as the gravity of the infringement, duration of the infringement, relevant market structure, etc.

Apart from the pecuniary sanctions that CPC may impose, it is additionally vested with powers to order appropriate measures to restore the position of the undertakings on the market concerned prior to the concentration, including orders for the divestment of capital, shares and assets, and/or for the termination of joint control.

Transactions subject to merger control in Bulgaria have to be notified and cleared by CPC prior to their implementation and after the first of the following triggering events: i) conclusion of the agreement, or ii) announcement of the public offering, or iii) acquisition of control.

The parties may also request CPC to appraise the effects of the concentration in a preliminary manner (i.e. before the transaction takes place) if they can demonstrate a good faith intention to conclude an agreement or, in a public offering, where the bidder has publicly announced its intention to make a bid.

Until CPC clears the transaction, all kinds of factual or legal actions related to the intended concentration shall be prohibited.

This prohibition shall not apply in case of a public offering or a series of transactions with securities allowed for trading in regulated markets of financial instruments, whereby control is gained from different sellers, provided that CPC has been notified without delay and that the person/entity acquiring the securities does not exercise the voting rights associated therewith, except for the purpose of preserving the value of the investment.

Pursuant to the Notification Form and the Guidelines for Submitting the Notification Form under Article 79(3) of LPC, the merger notification shall be prepared in a written form and shall contain detailed information about:

1. The undertakings participating in the concentration;
2. The undertakings and the persons/entities directly or indirectly controlling the undertakings participating in the concentration;
3. The undertakings controlled by the participants in the concentration;
4. The nature, the legal form and the purpose of the concentration;
5. The relevant markets wherein the participants in the concentration operate;
6. The market shares and the sum of the total turnovers of the undertakings participating in the concentration;
7. The barriers to entry into the relevant markets;
8. The major competitors, suppliers and customers;
9. Supporting evidence that i) the notified concentration does not lead to the establishment or reinforcement of a dominant position which would significantly impede effective competition in the relevant market or ii) the notified concentration which, even though establishing or reinforcing a dominant position, is aimed at modernizing the relevant business activity, improving the market structures and promoting consumers’ interests, and as a whole, the positive effect outweighs the negative impact on competition in the relevant market.

The notification shall also contain an explicit request to CPC to permit the concentration.

The filing fee is in the amount of BGN 2,000 (EUR 1,022).

In case of clearance decision is issued, an additional fee is due to equal to 0,1% of the total worldwide turnover of the concerned undertakings but not more than BGN 60,000 (EUR 30,635).

Proceedings to assess concentration shall be constituted within five business days after the notification is filed. Should there be any irregularities or deficiencies of the information provided, CPC may put on hold the constitution of the proceedings until overcoming the deficiencies.

Fast-track analysis (first phase assessment)

Following the constitution of the proceedings, CPC shall assess the concentration within 25 business days.

Upon request by the notifying undertakings, CPC may extend the period for assessment by up to ten business days in order for suggestions for changing the concentration to be prepared.

Regardless of whether the assessment period is extended, it shall be extended by another ten business days as of the date on which the applicant provides CPC with full information regarding the proposed changes in the concentration conditions.

Following completion of the fast-track inquiry, the work team designated for the assessment shall prepare a report and present it to the responsible member of the working team who shall afterward notify the Chairperson that the fast-track inquiry has been completed. The Chairperson shall issue a resolution scheduling a closed session of CPC, whereby a decision on the instigated proceedings shall be adopted.

Following the closed session, CPC may:

• Rule that the transaction is not a concentration or it does not require preliminary notification;
• Clear the transaction;
• Clear the transaction subject to the provision on the side of the participants of remedies which can be either structural (e.g. a divestiture of assets), behavioral (e.g. commitment to not enter into exclusive agreements), or a combination of both;
• Clear the transaction taking into account the remedies proposed by the participants;
• Initiate an in-depth analysis.
• In-depth analysis (second phase assessment)
• An in-depth analysis shall be performed when, as a result of the assessment performed during the fast-track analysis, CPC finds that the contemplated concentration gives serious reason for suspicion that such concentration would significantly impede effective competition in the relevant market, especially as a result of the establishment of reinforcement of a dominant position. CPC shall perform the in-depth analysis and close the proceedings within 90 days after the publication in its electronic register. In factually and legally complicated cases, such a time limit may be extended by up to 25 business days. In the case of remedies proposed aimed at the preservation of competition, the above-referred time limits shall be extended by 15 business days. The extension period shall commence as of the day following the day when CPC receives the full information regarding the remedies proposed. After sufficient evidence regarding the further development of the proceedings is collected, the working team shall prepare a report and present it to the responsible member of the working group assigned. The responsible Member shall notify the Chairperson about the report prepared and the Chairperson itself shall by a resolution schedule a closed session of CPC. Following the closed session, CPC may: (a) Clear the transaction, or (b) Adopt a ruling about its preliminary findings of the effect of the concentration on competition. The ruling shall set a time limit of at least 14 days wherein the notifier and the third interested parties may present their position on CPC’s preliminary findings. Parties and interested third parties shall have the right to be heard by CPC in a public session before a resolution is passed in essence. The public session shall be scheduled for a date at least 14 days after the expiry of the time limit for presenting positions on the objections raised. The parties and the interested third parties shall be heard by CPC in a private session. After the parties are heard, the Chairperson shall schedule a closed session. Following the closed session, CPC may: (a) Clear the transaction; (b) Clear the transaction subject to the provision of remedies directly related to the implementation of the concentration and required in order to preserve effective competition and restrict the negative impact of the concentration on the market affected, or (c) Prohibit the concentration.

CPC shall permit a concentration provided that it does not result in significant impediments to effective competition in the relevant market, especially as a result of the establishment or reinforcement of a dominant position.

CPC may permit a concentration which, even if leading to a significant impediment to effective competition in the relevant market, especially as a result of establishing or reinforcing a dominant position, is aimed at modernizing the relevant business activity, improving the market structures and promoting consumers’ interests, and as a whole, the positive effect outweighs the negative impact on competition in the relevant market.

In assessing the concentration, the Commission shall take into account the need to maintain and develop competition in the relevant market, taking into account circumstances such as the structure of the relevant markets and the actual and potential competition between undertakings located inside and outside the European Union, accordingly the Republic. Bulgaria, the situation of the undertakings on the respective markets before and after the concentration, the economic and financial strength of the participants in the concentration, the existence of buyer power, possible alternatives for the choice of suppliers and customers, their access to supplies or markets, technical and economic progress providing benefits to consumers as a result of concentration, trends in the supply and demand of relevant goods and services, the interests of consumers, legal, administrative, economic or other barriers to entry in the relevant markets, as well as other circumstances relevant to the specific case.

Within the course of the fast-track (first phase assessment) and in-depth analysis (second phase assessment) CPC may:

1. The rule that the transaction is not a concentration or it does not require preliminary notification;
2. Clear the transaction;
3. Clear the transaction subject to the provision on the side of the participants of remedies which can be either structural (e.g. a divestiture of assets), behavioral (e.g. commitment to not enter into exclusive agreements), or a combination of both;
4. Prohibit the concentration subject to completion of an in-depth analysis.

The parties can offer commitments both within the fast-track and in-depth analysis.

CPC shall impose a pecuniary penalty amounting to up to 10% of an undertaking’s or association of undertakings’ total worldwide turnover for the previous financial year for implementation of a concentration that has not been notified.

CPC may also in certain cases, notwithstanding the pecuniary sanction, impose on the parties to the transaction other behavioral and/or structural measures needed to restore effective competition, including by ordering that their amalgamated capital, stakes or assets should be separated and/or that joint control should be terminated.

CPC may further revoke its clearance decision issued when it is based on incomplete, inaccurate, false or misleading information.

CPC shall impose a pecuniary penalty amounting to up to 10% of an undertaking’s or association of undertakings’ total worldwide turnover for the previous financial year for:

1. The concentration which has been prohibited by CPC by a resolution;
2. The concentration is subject to mandatory prior notification before CPC has passed a resolution for clearing thereof unless the case is related to a tender bid or a series of transactions with securities allowed for trading in regulated markets of financial instruments whereby control is gained from different sellers, provided that CPC has been notified without delay and that the person/entity acquiring the securities does not exercise the voting rights associated therewith, except for the purpose of preserving the value of the investment.

CPC may review non-notified mergers to seek if they had been notifiable. If such mergers appear not to be subject to notification, CPC cannot challenge them.

When CPC has instigated proceedings at its own discretion, the investigation shall be performed under the general legal terms related to the proceeding before CPC.

After sufficient evidence is gathered regarding the further development of the proceedings is collected, the working team shall prepare a report and present it to the responsible member of the working group.

The responsible member of the working group shall notify the Chairperson of the report prepared. The Chairperson shall by a resolution schedule a closed session of the Commission within 14 days after the investigation is completed, whereby the further course of the proceedings shall be decided.

Following the closed session, CPC may:

1. Ascertain that no violation has been committed and more specifically that there is no breach of the obligation for preliminary notification;
2. Rule for sending back the case file for additional research with binding instructions to the working team;
3. Rule that a violation of the LPC has been committed by the respondent.

The ruling under letter (c) above shall set a time limit of at least 30 days within which the respondent shall have the right to file its written objections regarding the allegations and the constituted interested parties shall have the right to present their position.

Parties and interested parties shall have the right to be heard by CPC in a public session before a resolution is passed in essence.

By its proceeding closing resolution the Commission may resolve:

1. That there is no breach of the obligation referred to in Article 24 of the LPC;
2. To impose a pecuniary penalty for failure to comply with the obligation for preliminary notification as well as the relevant measures to restore effective competition (please refer to paragraph 18 above).

In 2019 the CPC has delivered 35 decisions in total in relation to instigated merger proceedings (a) 24 of which directly cleared the notified transaction; (b) 3 decisions proclaimed that the notified transaction does not constitute concentration because no permanent change of control occurs as per Article 22(1) of the LPC; (c) 4 decisions stated that the notified transaction does not meet the relevant thresholds for notification as set out in Article 24 (1) of the LPC, therefore, the transaction is not subject to preliminary notification; (d) 2 decisions which initiated in-depth analysis of the notified transactions; (e) 2 decisions that prohibit the notified transactions.

In 2020 the CPC has delivered 32 decisions in total in relation to instigated merger proceedings (a) 21 of which directly cleared the notified transaction; (b) 2 decisions proclaimed that the notified transaction does not constitute concentration because no permanent change of control occurs as per Article 22(1) of the LPC; (c) 7 decisions stated that the notified transaction does not meet the relevant thresholds for notification as set out in Article 24 (1) of the LPC, therefore, the transaction is not subject to preliminary notification; (d) 2 decisions for termination of the merger control proceedings due to withdraw of the notification.

In 2021 so far the CPC has delivered 21 decisions in relation to instigated merger proceedings (a) 16 of which directly cleared the notified transaction; (b) 2 decisions proclaimed that the notified transaction does not constitute concentration because no permanent change of control occurs as per Article 22(1) of the LPC; (c) 3 decisions stated that the notified transaction does not meet the relevant thresholds for notification as set out in Article 24 (1) of the LPC, therefore, the transaction is not subject to preliminary notification.

In 2022 so far the CPC has delivered 38 decisions in relation to instigated merger proceedings (a) 24 of which directly cleared the notified transaction; (b) 1 decision by which the notified transaction is cleared upon fulfillment of conditions; (c) 3 decisions proclaimed that the notified transaction does not constitute concentration; (d) 4 decisions stated that the notified transaction does not meet the relevant thresholds for notification as set out in Article 24 (1) of the LPC, therefore, the transaction is not subject to preliminary notification; (e) 2 decisions by which an in-depth investigation is being initiated; and (f) 3 decisions for termination of the merger control proceedings due to withdrawal of the notification.

The National Assembly of the Republic of Bulgaria is expected to transpose Directive 2014/104/EU on antitrust damages (“Directive”) actions introducing a minimum standard for antitrust damages actions which all EU Member States are required to meet. The Directive is designed to make it easier for victims of anti-competitive conduct to obtain compensation for the loss suffered.