In Part 1 we discussed the criteria for the applicability of the merger control and in Part 2 the procedure and the relevant practice of the Bulgarian competition authority.
In this Part 3 we discuss the types of decisions that the CPC is empowered to take on merger control cases.
Decisions of the Competition Authority
Upon conclusion of the first stage investigation, the CPC must decide on the merits of the notified concentration by a decision:
- finding that the notified transaction does not constitute a notifiable concentration;
- approving the concentration;
- approving the concentration subject to modifications suggested by the parties; or
- opening a second-stage investigation to examine the case more thoroughly.
If the CPC does not identify serious competition concerns in its first stage investigation, it clears the proposed concentration by an approval decision. An approval decision becomes effective (absent appeal) 14 days after it has been notified to the parties concerned or, for third interested parties, after its publication in the electronic public registry on the CPC's website.
If the CPC identifies serious competition concerns it would, at its sole discretion, carry out a second stage in-depth investigation (referred to as "in-depth investigation") of the concentration, which could extend the approval period up by several months. A second stage investigation should be completed within 4 months of publication of the decision to initiate second-stage proceedings. However, extensions of this term are also possible. In cases of factual or legal complexity the period may be extended by no more than 25 additional working days. If, in the course of the proceedings, the parties suggest modifications to address competition concerns, the period may be increased by 15 additional working days. At the end of the investigation, the CPC at a closed hearing would adopt either:
- a decision approving the concentration; or
- a ruling setting out its preliminary findings on the effects of the notified concentration on the competition (i.e. a statement of objections specifying the competition concerns identified).
In the latter case the notifying parties will have at least 14 calendar days to submit their opinion on the CPC's preliminary findings (in writing and/or at an open hearing) together with additional evidence, if any. Other interested parties may also submit their opinion within the specified term. At this stage the parties can still propose modifications to the notified transaction aimed at addressing / mitigating the competition concerns identified.
The notifying parties and the interested third parties may request to be heard by the CPC at an open hearing. Such an open hearing should be scheduled at least 14 days following the end of the period for submission of the parties' opinions on the CPC's ruling of preliminary findings.
The CPC finalizes its second stage investigation by a decision:
- approving the concentration;
- approving the concentration subject to fulfillment of the measures (conditions) directly related to the implementation of the concentration and necessary for the preservation of the effective competition and for limitation of the negative effects on the affected market(s) (such measures or conditions may be the modifications to the deal suggested to the CPC by the parties); or
- prohibiting the concentration.
The CPC may impose both structural and behavioral measures as conditions of clearance to address competition concerns identified based on its second stage investigation. For example, diversification (by transfer of parts of the parties' business or assets to third persons), or termination of certain exclusive contracts or licensing agreements.
The CPC is empowered to revoke any clearance decision if it is established subsequently that information or documents provided by the parties are incorrect or insufficient. The CPC is also empowered to revoke its clearance decision, if the parties fail to comply with the measures (or conditions) attached to the clearance decision.
Judicial appeal
The decisions of the CPC are subject to appeal before the Bulgarian Supreme Administrative Court (3-member panel). The parties may file an appeal within 14 days following the day they have been notified of the decision. Other interested parties may appeal the clearance decision within 14 days after its publication in the electronic public registry on the CPC's website.
Generally a judicial appeal suspends the entry into force of the appealed decision, unless the CPC has granted preliminary execution of its clearance decision (see below). The judgement of the Supreme Administrative Court (3-member panel) is subject to appeal before 5-member panel of the same court. The judgement of the 5-member panel is final.
There are no statutory deadlines to finalize the court proceedings. In practice, judicial appeals before the Supreme Administrative Court may take up to 2 years before they are finally settled, unless the court remands the case to the CPC for new investigation. In the latter case, the whole proceeding before the CPC and the potential judicial appeal in two instances may be repeated.
Preliminary execution of the clearance decision
As already noted, normally an approval decision becomes effective (absent appeal) 14 days after it has been notified to the parties concerned or, for third interested parties, after its publication in the CPC's electronic public registry. However, the notifying party may accelerate the closing of a cleared transaction, if the CPC grants preliminary execution of the clearance decision upon such party's request. In this case, by exception, the concentration can be implemented, once the clearance decision is issued and before it has entered into force.
Filing and clearance fees
Currently, a filing fee in the amount of BGN 2,000 (circa EUR 1,020) must be paid prior to the filing via wire transfer to the bank account of the CPC.
A clearance fee in the amount of 0.1% of the combined aggregate annual turnover of the parties in Bulgaria for the preceding financial year, but not more than total BGN 60,000 (circa EUR 30,700), must be paid after the issuance of the clearance decision via wire transfer to the bank account of the CPC.
In accordance with the Supreme Administrative Court's case law and the CPC's settled practice, the parties (i.e., usually the purchaser) to a notified and cleared merger must pay the merger clearance fee, even if ultimately the parties did not proceed to close the deal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
