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Bulgaria Transposed the Private Damages Directive

 

 After a significant delay, on 3 January 2018 in the Bulgarian State Gazette the Act for Amendment and Supplementation (the "Amendment Act") of the Competition Protection Act ("CPA") was promulgated. The Amendment Act transposes in Bulgarian law the European Directive 2014/104/EU on Antitrust Damages Actions dated 26 November 2014 (the “Private Damages Directive”). The deadline for transposition of the Private Damages Directive in the legislations of the EU Member States was 27 December 2016. Bulgaria delayed the transposition with more than a year. 

The Private Damages Directive applies to infringements of Art. 101 and 102 TFEU and their corresponding provision in the CPC, i.e. Art. 15 (prohibited agreements) and Art. 21 (abuse of dominance).

With regard to the incurred damages, the Amendment Act adopted that a rebuttable presumption for incurred damages exists only regarding cartel infringements. Unfortunately, the Amendment Act does not provide a standard of proof as to when the presumption is rebutted. Thus, such a standard is to be developed by the state courts. Probably, this is not the best approach, since courts view of such a standard of proof may vary.

So far, for the persons incurred damages by competition law breaches, the most difficult task is to prove the committed infringement. This issue was facilitated by imposing an irrebuttable presumption of fault of the inferior established with decisions by the European Commission or by the Bulgarian Competition Authority. Decisions by other Member States’ competition authorities will have solely evidential value in relation to the infringement.

 Understandably, to the procedures initiated without an existing decision of the European Commission or the Bulgarian Competition Authority the above rules will not apply. Consequently, the victims incurred damages by competition law breaches will again be in front of an obstacle proving the subjective element of the infringement. 

Outside the scope of application of the Private Damages Directive remain the specific for Bulgarian law abuse of better bargaining position. But still claims arising out of such breach will be covered by the Amendment Act, i.e. its Art. 105. Note shall be taken that the rules for collection of evidence deriving from the Private Damages Directive and transposed with the Amendment Act will not apply to claims arising out of an abuse of better bargaining position. 

The Amendment Act provides a joint and several liabilities for undertakings that breached competition law. Such lability’s limitation period is 5 years. The limitation period starts once the person incurred damages has knowledge, or it could be deemed that it had knowledge, of the damages, the infringer and the competition law breach.

Regarding the competence for resolving private damages claims, these will be the civil/commercial courts of the place of incorporation/residence of the defendant, i.e. the Amendment Act adopts the ruled set by the Bulgarian Civil Procedure Code. The competent state courts will be able to order the parties, or a third party, to disclose relevant evidence upon request of the parties to the claim as well as evidence collected and produced under the proceedings before the European Commission and the Bulgarian Competition Protection Commission.

The Amendment Act will enter into force on 7 January 2018, i.e. 3 days following the promulgation of the Amendment Act in the State Gazette. Claims for damages initiated before the Bulgarian state courts until 26 December 2014 will be ruled by the existing regime.