Delchev & Partners

Abuse of dominant position 

The new PCA contains the same general prohibition with regard to the behaviour of the dominant undertaking, as the repealed PCA4 namely:

1. directly or indirectly fix purchase or selling prices or any other trading conditions;
2. limit or control production, markets, technical development, or investment to the prejudice of consumers;
3. apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
4. make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
5. ungrounded refusal to supply goods or render services to a real or potential client in order to prevent its economic activity.

However, under the new PCA it is required that the abuse of dominance affects in a negative way consumer interests.

IV. CONTROL ON THE CONCENTRATIONS BETWEEN UNDERTAKINGS

Definition 

The new PCA contains the same definition of concentration between undertakings as the repealed PCA with the linguistic difference that under the repealed PCA this institute was named ‘concentration of economic activity’ while under the new PCA it is named ‘concentration between undertakings’.

New turnover thresholds for notification

Under the repealed PCA the concentration was subject to notification before CPC in cases where the joint turnover of all undertakings participating in the concentration generated from the territory of the Republic of Bulgaria for the preceding financial year was over BGN 15 000 000.

Under the new PCA the concentration will be subject to notification in case the joint turnover is over BGN 25 000 000 and: (i) the turnover of at least two undertakings – participants in the concentration generated from the territory of the Republic of Bulgaria for the preceding financial year is over BGN 3 000 000; or (ii) the threshold of the undertaking – subject to acquisition generated from the territory of the Republic of Bulgaria for the preceding financial year us over BGN 3 000 000.

Calculation of the turnover 

The new PCA contains provisions which describe the way the turnover of an undertaking is to be calculated.

V. UNFAIR COMPETITION

The new PCA has preserved in an identical way the formulations of the repealed PCA in the field of unfair competition and has introduced few new changes with regard to advertising and imitation.

With regard to unfair attraction of clients CPC has also adopted new maximum limitations on the value of additions7 accompanying the goods/services and the value of gifts/awards given the receipt of which is conditional on the play of a game, collection of points, etc.

Prohibition on misleading and unauthorized comparative advertising8

One of the new changes concerns the prohibition of misleading and unauthorized comparative advertising in the context of unfair competition relations between competitors9.

Misleading advertising 

According to the definition given in the new PCA, ‘misleading advertising’ means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor.

Comparative advertising 

According to the definition given in the PCA, ‘comparative advertising’ means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.

The comparative advertising shall be permitted only when the following conditions are cumulatively met:

• it is not misleading within the meaning of the new PCA and it does not constitute unfair business-to-consumer commercial practices within the meaning of the Bulgarian Consumer Protection Act;
• it compares goods or services meeting the same needs or intended for the same purpose;
• it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;
• it does not create confusion among traders, between the  advertiser and a competitor or between the advertiser’s trade marks, trade names, other distinguishing marks, goods or services and those of a competitor.
• it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;
• for products with designation of origin, it relates in each case to products with the same designation;
• it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;
• it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name;

Responsibility