Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
There is no specific filing deadline; however, given that notification and clearance should precede the acquisition of control and should be submitted prior to undertaking of factual and legal actions to implement the transaction, the parties would be well advised to submit their filing sufficient time in advance to allow that the decision of the Commission be issued in time.
As there is no filing deadline, there are no sanctions related to late filing. As regards closing the transaction without having submitted a notification or prior to clearance, see below.
Which parties are responsible for filing and are filing fees required?
The persons acquiring control (directly or indirectly) are the parties responsible for filing. These, depending on the circumstances of the case, may be the direct parties to the transactions, their parents or the specific entities established to take control or otherwise participate in the concentration.
In the case of a legal merger, the merging parties would be under an obligation to file.
A filing fee of 2,000 levs applies. In addition, a clearance fee of 0.1 per cent of the combined aggregate Bulgarian turnover of the participating undertakings for the latest preceding financial year would apply where a clearance decision is issued. This fee is capped at 60,000 levs.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
Where notification is mandatory, implementation of the transaction has to be suspended prior to clearance. The suspension does not apply in the case of a tender offer or a series of transactions in securities admitted to trade in regulated markets of financial instruments, by which control is acquired from different sellers, provided the Commission is notified without delay, and also provided the acquirer does not exercise the rights attached to the securities, except to the extent necessary to protect the value of the investment made.
After submission of the notification, the Commission has three working days to review the filing as to whether it is complete. If the Commission considers the filing complete, the chairperson will initiate proceedings. If the filing is incomplete, the Commission will inform the parties and initiate proceedings only after the deficiencies in the information or documents have been rectified.
As of the day following the day of initiation of proceedings, the Commission, in an accelerated (Phase I) proceedings, has to review the notification within a period of 25 working days. The review period is instructive and its expiry without a decision does not lead to a presumptive clearance. Requests for additional information during the proceedings stop the clock, and the review timeline is correspondingly extended.
The Phase I review period can be extended by up to 10 working days at the parties’ request, to allow them to prepare proposals for changes to the concentration. If proposals for changes to the concentration are submitted, the review period is automatically extended by a further 10 working days to allow the Commission to review and analyse the proposed proposals for changes to the concentration.
Where, during the Phase I proceedings, the Commission has come to the conclusion that the concentration raises serious doubts that it may lead to the creation or strengthening of dominance as a result of which effective competition would be significantly impeded, it may initiate an in-depth (Phase II) investigation into the case.
The Phase II investigation must be completed within four months of the publication in the Commission’s online electronic register of the decision to open the Phase II investigation. In complex cases, this period can be extended by up to an additional 25 working days. In case of a remedies offer, the timeline for review is automatically extended by 15 working days. The review periods in Phase II are also instructive and no implied clearance is available should they not be met.Pre-clearance closing
What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?
Closing or integrating the activities of the merging businesses in violation of the suspension obligation or without having submitted a notification and obtained clearance where this is mandatory can result in the imposition of sanctions in an amount of up to 10 per cent of the infringing parties’ annual turnover.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
Sanctions are applied in such cases.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
The Commission has not objected to carveout closing, where the transaction may be implemented in other jurisdictions, but is not implemented in Bulgaria pending clearance from the Commission. The way in which this is achieved would depend in each particular case, considering the parties’ activities in Bulgaria, but in general would involve the undertaking of legal obligations that the concentration will not be accomplished as regards Bulgaria until the Commission has issued its decision.
The Commission does not have the authority to waive the standstill obligation neither of its own initiative, nor at the request of the parties.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
As mentioned in question 11, in the case of public takeover bids in respect of publicly listed companies whose shares are traded in regulated markets of financial instruments, the suspension obligation does not apply, subject to notification without delay and provided the acquirer of control does not exercise the voting rights attached to the securities, except where necessary to protect the value of the investment. In this context, notification without delay would normally mean that the notification should be submitted as soon as possible and in any case before the actual acquisition of control has taken place.
Planned concentrations should normally be notified after the publication of the bid, but may occasionally be notified before that, if the parties can demonstrate a good faith intention to make such a bid. It must be underlined, however, that no exception to the notice publication requirement (see question 30) has been provided for such cases.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
The notification must contain information on the undertakings concerned, as well as their groups, the nature of the concentration as well as the mechanism and time frame in which control will be acquired, the economic rationale of the transaction, description of the relevant markets in which the parties operate, including their market shares, annual turnovers and any barriers to market entry that affect competition in these markets, their main competitors, suppliers and customers, as well as the parties’ view as to why the transaction will not lead to the creation or strengthening of a dominant position in any relevant market as a result of which effective competition would be significantly impeded.
Usually, documents evidencing the corporate existence of the parties are attached to the notification, the transaction documents giving rise to the change of control on a lasting basis, the annual reports of the undertakings concerned, a power of attorney, organisational charts of the parties’ groups, a draft public notice on the transaction and various other documents that reflect the parties’ positions in the relevant markets before the concentration.
In practice, the required level of detail in the notification would vary depending on the nature and complexity of the transaction (eg, whether it is an acquisition of a direct competitor, or a supplier or customer, or an unrelated business), as well as depending on whether the transaction can potentially raise competition concerns.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
After submission of the filing, the Commission’s administration will review the notification and attachments and where they are complete, the chairperson of the Commission will initiate proceedings on the case (a case number is assigned).
Once proceedings are initiated, a brief notice concerning the case is published on the website of the Commission (draft of which is provided by the parties to the merger control proceedings).
During the proceedings, the Commission often sends questionnaires to the parties and to their major competitors, suppliers and customers, who in addition to providing information, are invited to express their views concerning the merger.
At this stage or with the notification, the parties can offer remedies to address specific competition concerns that arise out of the transaction.
After the Phase I review, the Commission will issue a decision by which it:
- declares that the transaction does not constitute a concentration or does not fall within the scope of article 24;
- clears the transaction unconditionally;
- clears the transaction subject to conditions and obligations; or
- initiates in-depth (Phase II) proceedings on the case.
The decision under (iv) above cannot be appealed. The decision at the end of Phase I is issued without a hearing of the parties. Access to the file can be provided only after the Phase I decision is issued.
The actions following the initiation of Phase II investigation follow a similar pattern to those under a Phase I proceeding. Interested third parties are allowed to submit observations within 30 days of publication of the decision opening the Phase II investigation on the Commission’s website.
At the end of the review, the Commission will either issue an unconditional clearance, or adopt a statement of objections, addressed to the notifying party or parties.
The parties will have 14 days or more to respond to the statement of objections and access the file. After they submit their response, they also have the right to be heard in an open sitting of the authority, which can take place no sooner than two weeks after the expiry of the deadline for the submission of the response.
At the end of the Phase II investigation, the Commission will issue a decision by which it:
- approves the transaction unconditionally;
- approves the transaction subject to conditions and obligations; or
- prohibits the transaction.
What is the statutory timetable for clearance? Can it be speeded up?
In practice, most mergers are reviewed within the 25-working-day review period prescribed by the law for a Phase I (accelerated) proceeding. The Commission rarely shortens its review below this period and also rarely extends it beyond it by any significant amount of time. However, it takes additional time, after the adoption of the Commission’s decision, for the parties to be notified.
The preliminary review for completeness of the notification sometimes exceeds the legally allowed three working days following the submission of the notification. In almost all cases the Commission makes use of its ability to request additional information during the preliminary review process (after submission of notification), which extends the period for initiation of the case itself and the deadlines for the decision, respectively.
In Phase II proceedings, in most cases the Commission has issued its decision sooner than the expiry of the four-month period prescribed by the PCA.
As mentioned, the review periods vary depending on the nature and complexity of the case. In principle, the Commission follows the statutory periods for examination and its internal guidelines within the assessment of the specific transaction.