Delchev & Partners

By way of reference this decision adopts the rules of Regulation 2022/720 and Regulation 461/2010 with certain minor national specificities (eg for national market purposes the annual turnover in Article 2(2) of Regulation 2022/720 is EUR 7 million instead of EUR 50 million).

 National de minimis provision. According to the national de minimis provision in the Bulgarian Protection of Competition Act (PCA) the de minims rule “does not apply to agreements which have as their object or effect…” as opposed to the De minims Notice which provides that it “does not cover agreements which have as their object…” only. The Bulgarian NCA further adopted its own analogue of the De Minimis Notice in which it reflects the standing that the deminis rule “does not cover agreements which have as their object…” only. However the decision of the Bulgarian NCA is of lower rank and may not contradict the PCA. There is no case law to clarify this discrepancy, ie whether PCA is to be construed correctively to reflect the De Minims Notice or there is a national specific de minis rule.

 The rule of reason. In one particular judgment in 2023 the Bulgarian Supreme Administrative Court generally noted the rule of reason doctrine and its possible application to vertical agreements in the context of resale price maintenance. As the note was made generally in one short sentence and in passing and does not seem to be linked to the concrete facts of the case it is quite uncertain how to construe it.

 Brief statistics. Since 2008, when the new PCA was adopted, there have been between 0 and 4 vertical cases per year before the Bulgarian NCA.

 Public v private enforcement. Private enforcement in Bulgaria is underdeveloped and stays behind public enforcement. However, it is at least worth noting that Bulgarian civil case law shows signs to overcome its older understanding that public enforcement is a compulsory prerequisite for the admissibility of private enforcement, ie that now civil courts may have a say on matters related to Articles 101 of TFEU (eg compensation or (in)validity of clauses) in the absence of a prior finding of an infringement by a competition authority.