Bulgaria – Private enforcement (EN)
With the turning of the page other questions concerning the interrelation between private and public enforcement will inevitably emerge in Bulgaria, eg what effect could the failure to prove infringement in private enforcement proceedings have in future public private enforcement proceedings concerning the same infringement; and if such a thing is possible to establish in later public proceedings how could this provide a legal ground for seeking damages again in new private enforcement proceedings. At this stage, however, it is encouraging that the door has been opened and the force has been awakened as these developments inevitably require one step at a time.
- In parallel to the above it is noteworthy that in recent years Bulgarian civil courts have been called upon to deal with objections for nullity of contractual provisions because of their contradiction with competition rules.
In 2024 SCC did not admit a cassation appeal in a case where the lower courts had declared a contractual provision for exclusive distribution of patented goods to be invalid due to contradiction with competition rules. The lower courts also ruled that the producer held a 100% market share of the relevant market because the goods in question were patented. Although a lot could be said about the motives of the lower courts SCC correctly identified that question that was never asked in order for the cassation appeal to be admitted, namely: whether the fact that the product is patented is sufficient grounds for determining that it is not interchangeable, or more generally, for the criteria for determining whether a product is interchangeable in the sense referred to.
While it is regrettable that the case was not admitted to a cassation appeal, because according to SCC the cassation appellant had failed to raise the correct cassation question, the greater value at this stage is that the Bulgarian civil courts are being called upon to private enforce of competition law – something that has for a very long time been outside their focus.
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