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Amendments in the Protection of Competition Act

Amendments in the PCA were promulgated in SG, issue No. 2 dated January 3rd, 2018, providing for detailed regulation of the compensation claims for damages caused as a result of violations under the PCA.

New chapter fifteen “Tort Liability” has been adopted, as the current Art. 104 “Compensation Claims” has been repealed.

All natural persons and legal entities to which damages have been caused shall be entitled to compensation in full amount, even in case the violation has not been directed against them.

Compensation claims shall be filed under the Civil Procedure Code, as the judgment of the Supreme Administrative Court entered into force, which upholds a resolution of the Commission for Protection of Competition (“the Commission”) for ascertaining a violation, shall be binding upon the civil court in regard to the fact of the violation and the violator.

Pursuant to the new Art. 106 of the PCA, the compensation in full amount shall put the injured person in the position in which he/she would be if the violation was not committed.

The compensation in full amount covers the losses suffered and the loss of profit, together with the due legal interest, as the same shall not be excessive compared to the suffered damage.

According to the new Art. 107 of the PCA, any person suffered damages regardless if he/she is a direct or indirect buyer, shall be entitled to compensation. In § 1 of the Additional Provisions of the PCA legal definitions of the two terms have been provided for.

Compensation may be sought as well as in case the violation is related to delivery to the enterprise, which has committed the violation, as the compensation for losses suffered at each level of the delivery chain cannot exceed the overcharge at this level.

The injured person shall be entitled to compensation for loss of profit, including in case of full or partial transfer of the overcharge in the delivery chain (Art. 107, Para. 4 of the PCA).

Pursuant to the new Art. 109 of the PCA, upon assessment whether the compensation claim for damages is grounded and for determination of the amount of the compensation, the court shall take into consideration whether and to what extent an overcharge has been transferred to the claimant. The existence and the amount of such transfer shall be proven by the claimant.

According to Art. 109, Para. 2 of the PCA, until proven otherwise, it shall be considered that a transfer of an overcharge has been made, in case the indirect buyer has proven that:
1. the defendant has committed a violation;
2. the violation has led to an overcharge for the direct buyer, and
3. the indirect buyer has bought the goods or the services – subject of the violation, or has bought goods or services, received or containing such goods or services.

The prescription for filing a claim under chapter fifteen “Tort Liability” of the PCA shall commence to run as of the day of cessation of the violation, in case the claimant is aware or it may be presumed that he/she is aware if:
1. the conduct that constitutes a violation;
2. the damages caused to him/her, and
3. the violator.

The prescription shall be interrupted by initiation of a proceeding for ascertaining a violation committed by an authority for protection of competition. During the proceeding before the Commission prescription does not run, as new prescription shall commence to run after the expiry of one year as of the entering into force of the judgment by which a committed violation is ascertained, or as of the completion of the proceeding before the authority.

In case of a compensation claim for damages against a person released from sanction, the prescription shall commence to run as of the moment in which it is ascertained that compensation in full amount may not be received from the rest of the violators, which are jointly liable for the damages caused.

The court with which a compensation claim for damages has been filed may suspend the proceeding initiated therebefore for a period of 2 years in case the parties are involved in an out-of-court settlement of the dispute, subject of the case. In this case the prescription shall not run in regard to the participants in the out-of-court settlement of the dispute.

In case of reaching out-of-court settlement of the dispute, the claim of the respective injured person in regard to the damages caused thereto by the violation shall be deducted by the part of the co-violator entered into an agreement with this person. The remaining part of the claim of the injured person may be filed only against co-violators, which have not participated in the settlement of the dispute.

According to Art. 113, Para. 2 of the PCA, until proven otherwise, it shall be presumed that the cartel is causing damages.

In case it is ascertained that the claimant has suffered damages, the court shall award compensation even in case that on the grounds of the available evidence it is not possible to determine the exact amount of the damages caused.

The entered into force judgment of the authority for protection of competition or of a court of another Member State, by which violation is ascertained, may be presented as evidence in a proceeding for compensation.

Pursuant to the new Art. 115 of the PCA, in case the violation has been committed by two or more enterprises or associations of enterprises, the same shall be jointly liable for the damages caused by the violation.

A person released from sanction shall be jointly liable before its direct and indirect buyers or suppliers, as well as before other injured persons, only in case compensation in full amount cannot be received from the other enterprises, participants in the same violation.

According to the new Art. 116 of the PCA, a co-perpetrator, which has performed more than the amount of its share, shall be entitled to file a regressive claim against any of the rest of the co-perpetrators for the difference according to their relative liability for the damages caused by the violation.

The co-perpetrator, not having participated in the out-of-court settlement of the dispute, shall not be entitled to file a regressive claim against a co-perpetrator.

The court with which a compensation claim under chapter fifteen of the PCA has been filed may order the defendant or a third party to present evidence of significance to the case, which is under their control.

The court shall order the presentation of evidence containing confidential information in the cases where the court considers that they are of significance to the compensation claim for damages.

The refusal to present evidence due to the possibility that the same be used against the person presenting them, shall not be allowed.

The court may order the presentation of evidence collected under a file of an authority for protection of competition.

Collection of evidence, which represent internal documents of the authority for protection of competition, including its correspondence with other authorities for protection of competition, shall not be allowed.

According to the new Art. 120 of the PCA, a fine at the amount from BGN 500 to BGN 50 000 shall be imposed on natural persons, and a material sanction at the amount from BGN 5000 to BGN 500 000 shall be imposed on the legal persons, in case of:
1. non-performance of a ruling of the court for presentation of evidence;
2. destruction of evidence of significance to the case;
3. non-performance of the obligations imposed by a court ruling for protection of confidential information;
4. violation of the limitations in regard to the use of evidence.

§ 1 of the Additional Provisions of the PCA provides for legal definitions of following terms: “violation of the right of competition”, “violator”, “national legislation of competition”, “co-perpetrator”, “compensation claim for damages”, “claim for suffered damages”, “injured person”, “national authority for protection of competition”, “authority for protection of competition”, “national court”, “court excessing court supervision”, “judgment for ascertainment of violation”, “final judgment for ascertainment of violation”, “evidence”, “programme for release from sanction or reduce of sanctions”, “request for release from sanction or reduce of sanctions”, “existing information”, “request for reaching an agreement”, “released from sanction person”, “overcharge”, “out-of-court settlement of the dispute”, “voluntary agreement”, “direct buyer”, “indirect buyer”, “delivery chain”.

The adopted amendments have entered into force 3 days after their promulgation in SG.