In November 2015 the Competition Protection Commission issued a statement of objection against Aurubis Bulgaria AD and Aurubis AG. Based on its preliminary findings, the commission accused Aurubis of abuse of its dominant position in the Bulgarian market for the production and sale of sulphuric acid. The commission accused Aurubis of selling the acid at unjustifiably high prices and thereby discriminating against its Bulgarian customers in favour of international clients.

The commission began its investigation in 2013 following a claim brought by Agropolychim AD against Aurubis for abusing its dominant position as a sulphuric acid producer, and against Aurubis and KCM AD (Plovdiv) – a leading producer of non-ferrous and precious metals in Southeast Europe and the Black Sea Region – for concerted practices aimed at sharing the markets for the sale of sulphuric acid.

At the beginning of the investigation the commission conducted a dawn raid at Aurubis' offices in Pirdop. During the raid, the commission seized electronic, digital and forensic evidence from computer hard drives. Aurubis objected that copies of certain emails between the company and its external lawyers should not be reviewed by the commission as relevant evidence because they were subject to legal privilege. Thus, the commission had no right to request non-confidential versions of the emails to be submitted. Nevertheless, the commission issued a ruling by which, among other things, it accepted that the emails were business secrets and Aurubis was obliged to provide the commission with non-confidential versions in order to assess whether they were privileged. Aurubis objected to the ruling before the Supreme Administrative Court.

The appeal was considered impermissible because it was brought against an act of the commission, which alone could not be appealed before the court. According to the court, the commission's ruling, that certain information provided by the parties to the investigation did not qualify as a business secret, could be appealed separately. However, the court concluded that the commission's assessment of whether the evidence was relevant to the investigation and whether it was privileged could be appealed as part of the commission's final decision only.

The investigation is in its second phase. Aurubis can oppose the statement of objection and propose commitments, and has the right to be heard by the commission in an open hearing session. No time limit is envisaged for completion of the investigation.

For further information on this topic please contact Mariya Papazova at Advokatsko Druzhestvo Andreev Stoyanov & Tsekova in cooperation with Schönherr Rechtsanwälte GmbH by telephone (+359 2 933 1072) or email (m.papazova@schoenherr.bg). The Advokatsko Druzhestvo Andreev Stoyanov & Tsekova website can be accessed at www.schoenherr.eu.