Should a contemplated transaction satisfy the criteria discussed at Part 1, the mandatory merger control would apply and the responsible party or parties must file a notification with the CPC.
Filing must be made prior to closing/implementation of the contemplated transaction. Bulgarian competition laws do not specify an exact term for filing. The parties normally have a strong incentive to file as soon as possible after they have reached an understanding in sufficient detail on the transaction structure, because the closing of the contemplated transaction must not occur before the merger clearance is granted.
The standard form notification must provide information about the parties concerned and describe in sufficient detail, among others:
- the nature of the proposed transaction
- the relevant product and geographic markets
- the existing barriers to entry
- the structure of supply and demand on such markets affected by the concentration
- the parties' market shares
- major suppliers, customers and competitors.
The notification is accompanied by certified copies of the relevant supporting documents (e.g. last audited annual accounts, certificates of good standing, market studies, etc.). The parties are entitled to mark their confidential information as protected trade/business secrets. The CPC collects such documents and information in separate files and they are not available to the other participants of the proceedings or to the public.
Notification may be based either on a signed binding transaction agreement or, if no such agreement is signed, on the basis of other written understandings between the parties (e.g. signed letter of intent, heads of terms or memorandum of understanding) evidencing to a sufficient extent their intention to conclude such agreement. In the latter case, the parties should mind that the CPC's assessment will be based on the non-final document and any subsequent material changes may not be covered by the clearance, if not notified.
While there is no formal pre-notification negotiation procedure under the PCA, in cases which may raise certain competition concerns, it is recommendable to seek informal guidance from the CPC in pre-notification discussions.
The first stage investigation (referred to as "accelerated investigation") should be finalized within 25 working days (following the 3 day period for formal opening of the case) of receipt by the CPC of all information and supporting documents it considers necessary. Extensions of this term are possible. Normally, depending on the workload of the CPC, decisions based on first stage investigations are issued within 1.5 – 2 months following submission of a complete notification and supporting documentation.
The Bulgarian competition law does not provide for "simplified proceedings" or "fast-track procedure" (i.e. proceedings speedier than the regular investigation) or any form of speeding up of the first stage investigation proceedings.
The CPC generally requires additional information and documents from the parties by means of an official request letter to the notifying party, usually sent within a week or so after the filing of the notification. Such requests generally stop the clock until all required information is submitted.
Standardized brief announcements regarding the filed notifications are published in the public electronic register available on the CPC's official website. Interested third parties are invited to present information and/or comments on the impact of the concentration on the relevant market within seven days of such publication.
Also, after opening of a case the CPC usually sends information requests to competitors and clients of the parties and, where applicable, to industry associations, regulatory authorities, etc. asking them to evaluate the effect of the notified concentration on the relevant market.
Third parties who demonstrate sufficient interest may request from the CPC to be admitted to the proceedings. The CPC resolves on their requests by a formal ruling. Such parties may have limited access to all case files, except for the documents that are marked as confidential, and may be present and make statements at open hearings.
If during the first stage investigation, the CPC raises in its discussions with the notifying parties certain competition concerns in relation to the notified transactions, the parties may propose modifications to the initial deal (the so called commitments) to address such concerns and mitigate the potential negative effects of the concentration on the relevant market(s). In such case, the 25 working days period for review may be extended by up to 20 working days in which the parties to submit to the CPC the proposed modifications in the transaction.
[In Part 3 we will discuss the types of decisions the Bulgarian CPC is empowered to issue on merger control cases.]
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.