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General framework

Legal framework

What is the legal framework in your jurisdiction covering the behaviour of dominant firms?

The relevant legislation covering the behaviour of dominant undertakings applicable in Bulgaria is the Law on Protection of Competition (LPC). The provisions prohibiting the abuse of a dominant position in the LPC mirror article 102 of the Treaty on the Functioning of the EU, excluding the requirement for effect on the trade between member states. An English version of the LPC is available on the website of the Bulgarian Competition Authority - Commission on the Protection of Competition (CPC) - www.cpc.bg/General/Legislation.aspx.

Definition of dominance

How is dominance defined in the legislation and case law? What elements are taken into account when assessing dominance?

The Bulgarian LPC defines dominance as a position on the market of an undertaking that, in view of its market share, financial resources, market access possibilities, level of technology and economic relations with other undertakings, is able to act independently from its competitors, suppliers and purchasers.

In assessing dominant position, the CPC takes into account factors such as the market share of the undertaking under the investigation and of other market participants; market conditions and market structure; barriers to entry in the market; and consumers’ preferences.

Bulgarian law also addresses a monopolistic position of an undertaking as an exclusive right to carry out a certain economic activity granted by law in cases explicitly provided for in the Bulgarian Constitution.

Purpose of legislation

Is the purpose of the legislation and the underlying dominance standard strictly economic, or does it protect other interests?

Bulgarian competition legislation aims to ensure protection of and conditions for free enterprise. The law regulates protection against the abuse of monopolistic and dominant market position that may result in prevention, restriction or distortion of competition and may affect consumers’ interests. In its constant practice the Commission confirms that the LPC protects the competition on the market but not individual interests of particular undertaking. In dominance cases, the CPC in recent years has increased its focus on consumers’ welfare.

Sector-specific dominance rules

Are there sector-specific dominance rules, distinct from the generally applicable dominance provisions?

The competition law applies to all sectors of economy, including regulated sectors, such as telecommunications, postal services, energy and transport.

At the same time, in conformity with the 2009 EU electronic communications regulatory framework, the Bulgarian Commission on Regulation of Communications (CRC) must ensure that telecoms markets are competitive. It has independent authority to review and define markets subject to ex ante regulation. The CRC defines the relevant markets and determines market players with significant market power (SMP). The CRC may impose specific obligations on the SMP operators where it finds that, owing to the structure of the market and the SMP position of the operator, the effective competition may be prevented (ex ante regulation). Irrespective of the ex ante regulation by the CRC, the proper function of competition is subject to ex post control by the CPC.

Exemptions from the dominance rules

To whom do the dominance rules apply? Are any entities exempt?

The LPC applies to all undertakings carrying out economic activity in Bulgaria regardless of their organisational form (ie, natural or legal person or unincorporated entity) and does not provide exceptions for public or other entities. However, the conduct of a public body may be qualified as abuse of a dominant position only where the particular conduct does not represent exercise of their administrative functions and authority. For example, the Bulgarian National Health Insurance Fund has been under investigation several times for abuse of a dominant position, and only in one of the cases did the CPC find that it acted in the capacity of a commercial undertaking and assessed possible abuse of a dominant position. In 2017, the CPC investigated a possible abuse of a dominant position by the Commercial Register in relation to the provision to third parties of the Commercial Register’s database against remuneration. The CPC found that the investigated activity does not aim to generate profit and thus does not constitute an economic activity, but is rather part of the functions of the Commercial Register as an administrative body and therefore the competition law does not apply.

Transition from non-dominant to dominant

Does the legislation only provide for the behaviour of firms that are already dominant?

Under Bulgarian law, prohibition of abuse of a dominant position only applies to undertakings that already enjoy dominance.

Collective dominance

Is collective dominance covered by the legislation? How is it defined in the legislation and case law?

The concept of collective dominance was reflected in Bulgarian legislation in 2008. The law prohibits any abuse of a dominant position by two or more undertakings holding a collective dominant position. The Methodology for Investigation and Definition of Market Position of Undertakings on the Relevant Market (Methodology) adopted by the CPC, defines ‘collective dominance’ as a position of two or more legally independent undertakings that are linked in such a way that they adopt and apply a common market policy. In a few cases the CPC dealt with the concept of collective dominance and held that to find collective dominance it is sufficient to establish that the undertakings have given up their independent market behaviour and, given the structure of the market, collectively have market power that allows them to dictate the market conditions in a way that can gain an advantage over competitors (Decision 623/2009).

Dominant purchasers

Does the legislation apply to dominant purchasers? Are there any differences compared with the application of the law to dominant suppliers?

Bulgarian legislation applies to all undertakings holding and abusing a dominant position on the market. In most cases, the CPC analyses the behaviour of dominant suppliers. While there are no cases where the behaviour of dominant purchasers is assessed, we expect that the CPC will apply the law in the same manner as applied to dominant suppliers.

Market definition and share-based dominance thresholds

How are relevant product and geographic markets defined? Are there market-share thresholds at which a company will be presumed to be dominant or not dominant?

In 2009, the CPC adopted a Methodology that provides guidance for defining relevant product and geographic markets. The approach of the CPC in defining the relevant product and geographic markets in dominance cases is no different from the approach used in merger control cases. The relevant product market includes all products or services regarded by the consumer as interchangeable in view of the product characteristics, price and intended use. The geographical market covers the territory on which the substitutable goods or services are offered and where the conditions of competition are homogenous and differentiate significantly from the conditions on the neighbouring markets.

Before 2008, the repealed LPC provided for a presumption for dominance where a market share of 35 per cent was present. The current LPC does not provide for a market share threshold at which an undertaking will be presumed to hold a dominant position. However, the CPC Methodology provides that if an undertaking holds a market share below 40 per cent on the relevant market it is not likely to be considered dominant. Therefore, a market share of 40 per cent could be an indication for existence of a dominant position. This threshold is often used by the CPC in dominance cases.

Abuse of dominance

Definition of abuse of dominance

How is abuse of dominance defined and identified? What conduct is subject to a per se prohibition?

Bulgarian law defines the abuse of dominance as a conduct of undertaking with monopolistic or dominant position that may prevent, restrict or distort competition and may affect consumers’ interests.

A non-exhaustive list of abusive behaviour is provided in the legislation. This includes:

  • the imposition of prices or unfair trading conditions;
  • limitation of the production, trade and technical development to the detriment of consumers;
  • applying dissimilar conditions to equivalent transactions with certain trading parties, thereby placing them at a competitive disadvantage;
  • making the conclusion of contracts conditional upon acceptance by the other parties of obligations or conclusion of additional contracts which, by their nature or according to normal commercial practice are not independently linked to the subject of the main contract or the execution thereof; and
  • unjustifiable refusal to supply any goods or provide any services to an existing or potential customer, with the purpose of hindering their business.

Under Bulgarian law, abusive practices of dominant undertakings are not per se illegal. In most of its decisions the CPC follows an effect-based approach looking for actual or potential harm to competition or consumers’ interests in order to identify and sanction anticompetitive behaviour of dominant undertakings. So far in its practice, the CPC has not applied the concept of ‘by nature abusive behaviour’, such as exclusive rebates.

Exploitative and exclusionary practices

Does the concept of abuse cover both exploitative and exclusionary practices?

Under Bulgarian law, both exclusionary practices and exploitative conduct of dominant undertakings are abusive and prohibited. For example, in 2017, the conduct of a Bulgarian electricity company where it imposed to its clients unfair trading conditions with the aim to gain unjustified financial benefits in the context of providing access to its electricity distribution grid was qualified by the CPC as an exploitative abuse. In another case, the CPC qualified as an exclusionary abuse the conduct of an undertaking (acting as a heat energy supplier and a heat consumption accounting company) where, by leveraging its dominant position on the upstream market for sale of heat energy, the undertaking adopted a strategy for restricting the access and removing from the heat consumption accounting market its competitor by unjustified termination of the established contractual relationship with the latter.

Link between dominance and abuse

What link must be shown between dominance and abuse? May conduct by a dominant company also be abusive if it occurs on an adjacent market to the dominated market?

Bulgarian law prohibits abusive unilateral conduct of dominant undertakings or of an undertaking with monopolistic position. The case law of the Supreme Administrative Court (SAC; Decision 1402/2007) held that there is a causal link between a dominant position and the abusive behaviour. The conduct would be considered abusive only where it was possible because of the market power of the dominant undertaking.

According to Bulgarian law, the anticompetitive effect of the abusive behaviour of the dominant undertaking may occur in the market where such undertaking is dominant or in other markets, such as downstream or otherwise adjacent markets.

Defences

What defences may be raised to allegations of abuse of dominance? When exclusionary intent is shown, are defences an option?

Bulgarian law does not provide explicit conditions for exclusion from liability for abusive behaviour of a dominant undertaking. In its practice, the CPC accepted certain justifications raised by dominant undertakings in their defence. For instance, objective justifications like poor creditworthiness of a customer or implementation of a new commercial strategy by dominant undertakings equally applicable to all customers are considered as objective justifications for refusal to supply. In Decision 1133/2007, the CPC found that a pharmaceutical company had objective justifications of their refusal to supply their former distributors with medicines as a result of the changes in the distribution model applied by the company after the accession of Bulgaria to the EU. The company decided to supply the Bulgarian market through several large distributors and made a tender with objective selection criteria (volume of sales) equally applicable to all participants. In such case the CPC also considered that the market for supplying the medicines in question was not foreclosed, as the non-selected distributors had options to obtain the products from other distributors or by import.

The efficiencies defence is generally accepted by the Bulgarian competition authority. The efficiency gains are usually raised by dominant undertakings in their defence in ‘abusive pricing’ cases. However, in most cases, the CPC rejects the defence arguments based on the failure to provide sufficient evidence for efficiencies gains for consumers.

Specific forms of abuse

Types of conduct Types of conduct

Indicate to what extent the following types of conduct (questions 14–25) are considered abusive. Mention briefly any leading precedents on, and the relevant tests for, assessing the categories of conduct: Rebate schemes

Although the CPC considers rebate schemes that tend to foreclose competition are abusive if applied by dominant undertakings, there are a limited number of cases where the loyalty rebate scheme was assessed for compatibility with Bulgarian antitrust provisions (for example, CPC Decision No. 28/2000). The CPC fell short of categorising the rebates (it found elements of ‘loyalty rebates’, ‘exclusive dealing’, ‘target rebates’) and focused its analysis on the foreclosing effect of the discount scheme implemented by the dominant undertaking.

Tying and bundling

Under Bulgarian law, making the conclusion of contracts subject to obligations that have no direct pertinence to the subject of such contracts could constitute abuse of a dominant position. Neither tying nor bundling are prohibited per se by the LPC.

In the assessment of tying and bundling as forms of abusive behaviour, the CPC follows EC and ECJ case law - in its Decision 839/2010 it outlines the elements that are relevant for establishing of an infringement: dominance in the tying market; tied offering of two distinct products or services; compulsion for buying the tied product; and lack of objective justifications for the applied practice. In the said decision, the CPC assessed the market behaviour of a Bulgarian cable TV operator for alleged abuse of market position on the cable TV market by way of tying services - the service ‘cable TV’, where the operator was said to have a dominant position was bound with a ‘fixed telephony’ - where it had small market share. The CPC analysis, however, did not prove the statements of the claimant that the cable operator held a dominant position on the cable TV market and the CPC closed the case.

Bulgarian case law on tying and bundling mainly concerns telecoms markets.

Exclusive dealing

There is no precedent in the CPC practice, although the exclusive dealing is recognised by the CPC as a form of an abusive behaviour (CPC Decision 28/2000).

Predatory pricing

The CPC has rarely applied complex analyses on various cost measures in the assessment of alleged predatory pricing, although there are few examples of such cases. In Decision No. 88/2005 (quashed by the SAC) the CPC fined a dominant manufacturer of bread for placing on the market products at prices below their marginal costs. The CPC found that this was abusive because it aimed to exclude competitors from the relevant market. In its practice, the CPC did not consider recoupment as a necessary element of the predatory pricing.

Price or margin squeezes

In Bulgarian case law (Decision 210/2006, Decision 135/2006), margin squeeze is recognised as a form of abuse of dominance where a dominant undertaking is vertically integrated and is dominant in the upstream market, so downstream competitors rely upon the input from the upstream market; set a margin between its downstream retail price and upstream wholesale price that cannot cover downstream costs; and is significantly active on the downstream market.

Refusals to deal and denied access to essential facilities

Under Bulgarian law, unjustified refusal to supply goods or provide services to actual or potential clients is explicitly listed as abusive behaviour. In its practice, the CPC considers as abusive the practices applied by undertakings operating essential facilities without economic justification such as refusals to supply to existing and potential clients; termination (even partially) of long-standing relationships; and delay to entering into a commercial relationship.

The concept of ‘essential facility’ has been applied by the CPC for more than 18 years. ‘Essential facility’ is defined in Bulgarian case law as a facility owned by a dominant undertaking that cannot be efficiently duplicated (such as a bus station; an incineration facility; telecommunication infrastructure of the incumbent operator; or electricity grid), without access to which other undertakings cannot provide goods and services to their clients.

In a number of cases the competition authority and the SAC held that refusal to grant access to an essential facility constitutes an abuse of dominance.

The latest sanction imposed by the CPC for refused access to the essential facility (electricity grid) was in 2015, and amounted to 14 million leva.

Predatory product design or a failure to disclose new technology

There have been no precedents on predatory product design or failure to disclose new technology under Bulgarian law.

Price discrimination

Under Bulgarian law, both price and non-price discrimination are regarded as abusive behaviour. The law prohibits a dominant undertaking to apply dissimilar conditions to equivalent transactions to certain trading partners, thereby placing them at a competitive disadvantage.

The CPC regularly reviews cases for price discrimination. For instance, in 2015 the CPC fined an undertaking with dominant position on the market for distribution of individual heat cost allocators for applying dissimilar pricing conditions to its customers living in one city in comparison with prices applicable to consumers in other cities where the dominant company provided similar services.

In 2015, a new prohibition on ‘abuse of superior bargaining position’ (SBP) was provided for in the LPC. Any action or omission of an undertaking with an SBP as regards the contractor in the course of negotiations, such as imposing unfairly harsh or discriminatory conditions, unjustifiable termination of trading relationships, and which action or omission damages, or could damage, the interests of the weaker bargaining party and consumers, is prohibited. Unlike with the dominant position that takes a view on the position of the undertakings on the market, the SBP is determined in the context of a particular legal relationship between undertakings and with a view on the level of dependency between those undertakings resulting from the market structure, the character of their business activity and the existence of alternative channels of supply.

Exploitative prices or terms of supply

Pursuant to Bulgarian law, imposition of purchase or sale prices or other unfair trading conditions constitutes a form of abuse if committed by a dominant undertaking. The majority of CPC dominance cases in recent years relate to the imposition of exploitative (excessive) prices and unfair terms of trading by companies in the energy and telecom sector that operate essential facilities.

For example, in 2015, three operators of electricity distribution networks were fined for unjustifiably imposing excessive prices on access to the electricity distribution network. The CPC found that the dominant undertakings included in their prices certain expenses not related to the particular service for access to the electricity grid.

In 2014, a fine of approximately €14 million was imposed on the state-owned gas supplier Bulgargas for imposing unfair trading conditions to gas suppliers by forcing them to extend the terms of supply contracts without granting any option to renegotiate the contractual terms. (The CPC decision was overruled by the SAC.)

Abuse of administrative or government process

There are a very limited number of cases where the CPC investigated enforcement of intellectual property rights as a form of abusive behaviour. For example, the CPC found an infringement where a company banned the use of a figurative trademark ‘green point’ in order to exclude its competitor from the market (the CPC decision was overruled by the SAC).

There are a few cases where the registration of IP rights in breach of respective IP procedures and excessive enforcement of such rights was considered a form of unfair competition. However, in such proceedings the market position of undertakings exercising their rights is irrelevant and the abusive behaviour has been assessed in the context of unfair competition practices that constitute a separate form of infringement under Bulgarian law.

Mergers and acquisitions as exclusionary practices

There are no precedents in the CPC case law of mergers and acquisitions being considered as exclusionary practices.

Other abuses

In two recent cases the CPC imposed financial sanctions for abuse of dominance to companies in the electricity sector. The CPC analysed the behaviour of the electricity distribution company and the respective end-suppliers and traders from the same economic groups (CEZ and EVN) in relation to the liberalisation of the Bulgarian electricity market. The CPC found that the companies engaged in the following prohibited practices:

  • the respective electricity distribution company obstructed and slowed the process of issuance of the required documents by end-clients for entering the liberalised market;
  • the respective electricity distribution company and end-supplier denied access to the client’s consumption data to independent electricity traders outside their economic groups; and
  • the respective electricity distribution company and end-supplier and the related electricity trader exchanged information in relation to the actual consumption of clients.

Enforcement proceedings

Enforcement authorities

Which authorities are responsible for enforcement of the dominance rules and what powers of investigation do they have?

The CPC has the authority to conduct investigations where reasonable grounds indicating possible abuse of a dominant position exist. The CPC is the sole Bulgarian authority responsible for enforcing competition laws across all sectors. As mentioned in question 4, the CRC has certain powers with regard to ex ante regulation in the electronic communications markets. Although the CRC exercises ex ante control on competition in the e-communication sector, this does not preclude the CPC from enforcing its competences into these markets ex post if breach exists irrespective of ex ante regulation.

The CPC has a wide range of investigative powers. During an investigation the CPC case handlers are authorised to request information and evidence from the defendant, any third party, state authority or other competition authorities of the EU and member states that might have information relevant to the investigation. Requested parties should cooperate and provide all data in their possession, even if the information contains trade secrets. The CPC is obliged to protect any confidential information and not to disclose it to other parties. The CPC may fine any person who, without reasonable grounds, fails to comply with a formal information request.

The case handlers are also entitled to take oral or written statements from representatives of undertakings and other persons, as well as to conduct inspections of premises of undertakings.

For carrying out a dawn raid at the premises of the investigated undertaking, the CPC shall obtain an explicit authorisation from the Administrative Court in Sofia, based on which, it may enter all business premises used by the investigated undertakings (offices, motor vehicles, etc). However, under Bulgarian law, private premises and vehicles cannot be inspected by the CPC.

The CPC case handlers and other persons (such as IT experts) engaged by the CPC are authorised to:

  • enter and search premises. During the unannounced inspections, the CPC case handlers are usually assisted by the police in entering the premises;
  • take possession of relevant documents (in copy or original documents), or take necessary steps to preserve or prevent interference with such documents;
  • require any person to provide explanations to documents or information, to the best of their knowledge;
  • require relevant information that is stored electronically and is accessible from the secured premises to be produced in a form that is legible and to be taken by the CPC for further analysis; and
  • access servers accessible by computers and other means, located in the premises and take forensic images of any digitally stored information.

Unlike the EC, the CPC may seize all information and evidence - not only evidence relating to the investigation in question, but all other documents or evidence that raise a well-founded suspicion of other infringement under Bulgarian or EU competition laws.

Sanctions and remedies

What sanctions and remedies may the authorities impose? May individuals be fined or sanctioned?

Under the LPC, for abuse of a dominant position the CPC can impose administrative (pecuniary) sanctions at an amount up to 10 per cent of the total turnover of that undertaking in the preceding financial year. The exact amount of sanctions is determined by the gravity and duration of the infringement, as well as the circumstances mitigating or aggravating the liability of the undertaking. The CPC has issued a Methodology on setting fines where detailed guidance is provided on calculation of fines for a particular type of infringement.

The CPC can also impose administrative sanctions to individuals who have assisted the commitment of infringements at the amount of up to €25,000.

The highest fine imposed by the CPC for abusive behaviour of a dominant undertaking was approximately €14 million - to Bulgargas (see question 22).

The CPC is also entitled to impose appropriate structural or behavioural measures to restore competition. In practice, after receiving a statement of objections, dominant undertakings may offer the CPC commitments to remedy the established anticompetitive behaviour. One recent example is the commitment approved by the CPC where the dominant electricity end supplier proposed to enter into a power-purchase agreement with its competitor, thus remedying its unjustified refusal to enter into contractual relations.

Enforcement process

Can the competition enforcers impose sanctions directly or must they petition a court or other authority?

The CPC has the authority to conduct investigations and impose sanctions directly to undertakings that have abused their dominant position without additional sanction by a court. However, the CPC decisions are subject to appeal before the SAC, which confirms, quashes or reduces the amount of sanctions imposed to the undertakings by the CPC.

Enforcement record

What is the recent enforcement record in your jurisdiction?

The CPC has developed extensive practice in dominance cases. Between 12 and 20 dominance cases are investigated each year. In 2017, for example, nine new dominance cases were initiated. In the same period, the CPC found abuse of a dominant position and imposed pecuniary sanctions in four cases.

The most frequent forms of abusive behaviour investigated by the CPC concern unjustified refusal to supply and imposition of excessive prices and other unfair trading conditions. The most common infringements sanctioned by the CPC are cases where unfair trading conditions were found to be imposed: applying dissimilar conditions to equivalent transactions and refusal to supply. In recent years, after being served with a statement of objections by the CPC, most of the companies accused of abusive behaviour submitted proposals for remedies.

Under Bulgarian law, there is no deadline for completion of investigation in antitrust cases. The investigation by the competition authority may take at least six months, depending on the complexity of the case. The appeal proceedings last about two years in each instance.

Contractual consequences

Where a clause in a contract involving a dominant company is inconsistent with the legislation, is the clause (or the entire contract) invalidated?

Unlike cartels, there is no express provision in the LPC regarding the impact of an inconsistent clause in a contract involving a dominant company and the consequence with respect to the validity of the contract. In such cases, general provisions of the Bulgarian Contracts and Obligations Act shall apply - agreements that contradict or circumvent the law are null and void. However, if a particular clause is null and void but could be replaced by imperative provisions of law, the entire agreement shall not be affected.

Private enforcement

To what extent is private enforcement possible? Does the legislation provide a basis for a court or other authority to order a dominant firm to grant access, supply goods or services, conclude a contract or invalidate a provision or contract?

Under Bulgarian law the concept of private enforcement is not yet well developed. While undertakings and individuals who have suffered damages from anticompetitive behaviour of dominant undertakings are entitled to bring an action for compensations before the civil courts, the authority of courts to establish dominance is still disputable.

Damages

Do companies harmed by abusive practices have a claim for damages? Who adjudicates claims and how are damages calculated or assessed?

On 7 January 2018, an amendment and supplementation (the Private Damages Amendment) of the LPA entered into force, implementing into Bulgarian law the provisions of the Private Damages Directive.

An EC decision or a CPC decision establishing an infringement of the LPC that has not been appealed or has been upheld by the SAC is binding on the civil courts as regards the established infringement. In such cases, the claimant should prove in the court proceedings the actual damage, causation link between the damages and the particular anticompetitive behaviour, and the amount of damages. Decisions rendered by competition authorities in other EU member states will have evidential value in relation to proving an infringement, which, however, could be rebutted by the defendants.

If the claimant brings an action for damages directly before the civil courts, he or she should be able to prove that a dominant undertaking has infringed the LPC, prove actual damages, a causation link between the tort and damages suffered, and the amount of damages. Unlike for cartels, the LPC does not provide rebuttable presumption that abuses of dominant position always causes damages. The Private Damages Amendment increases the role of the judge in the determination of the amount of damages. In addition, for assessment of the damages caused, judges are authorised to seek the assistance of the CPC for the amount of the damages.

Pursuant to Bulgarian law, claims for damages should be brought before the competent civil courts.

Appeals

To what court may authority decisions finding an abuse be appealed?

CPC decisions are subject to appeal before the SAC. The court, when acting as a first instance, is entitled to review all the facts and law. Acting as a cassation jurisdiction, the court is limited in its review of the considerations raised by the claimant.

Appeal against a CPC decision should be filed within 14 days of receiving notification of the CPC decision. Any interested third party is also entitled to appeal the decision within 14 days of its publication on the CPC website. The appeal should be submitted through the CPC. The entire CPC file is provided to the SAC. The evidence and information marked as confidential are kept in separate files to which only the judges have access. The appellant, the CPC and the interested parties may submit written statements on the appeal and are summoned to take part in oral hearings before the court. The court may appoint external experts on specific technical or financial issues. Usually, the appeal procedure takes two years.

The SAC judgment is subject to cassation before the SAC sitting in a panel of five judges. The SAC’s five-panel judgment is final and binding. The cassation usually takes two years.

Unilateral conduct

Unilateral conduct by non-dominant firms

Are there any rules applying to the unilateral conduct of non-dominant firms?

As mentioned in question 21, from 2015, abuse of an SBP has been considered an infringement under the LPC and applies to a unilateral behaviour of non-dominant undertakings. The law prohibits any action or omission of an undertaking with an SBP as regards the contractor in the course of negotiations, such as imposing unfairly harsh or discriminatory conditions, unjustifiable termination of trading relationships, and which action or omission damages or could damage the interests of the weaker bargaining party and consumers. Unlike a dominant position, the SBP is determined not as a position of the undertaking on the market, but in the context of a particular legal relationship and with a view of the level of dependency between the undertakings concerned in the market structure, the character of their business activity, and the existence of alternative channels of supply.

For abuse of an SBP the CPC may impose a pecuniary sanction at an amount of up to 10 per cent of the undertaking’s turnover generated during the last financial year from the sale of the goods or services concerned. The amount of such pecuniary sanction cannot be less than 10,000 leva and a cap of 50,000 leva is established if the infringer did not generate any turnover in the preceding financial year.

Unlike in the antitrust investigations, under SBP investigations undertakings are not provided with a statement of objections and have no options to remedy their behaviour.

Following the CPC’s first decision for abuse of SBP prohibition in 2016, where Siemens Bulgaria was found to be in SBP as regards another undertaking requesting supply of Siemens-branded spare parts required under a public procurement tender awarded to the claimant, in 2017 CPC investigated nine SBP cases and imposed a pecuniary sanction in one case. The CPC found that BTV Media Group (a Bulgarian television channel) has abused its SBP by imposing unjustifiably burdensome conditions in the contracts using its SBP in the course of the negotiations with three cable operators.

The CPC is also entitled to impose a pecuniary sanction of up to 10 per cent of annual turnover on a non-dominant undertaking that sells significant quantities of goods or services over an extended period of time at prices below their production and marketing cost with the intention of unfairly soliciting clients (unfair solicitation of clients is a form of unfair competition).