As of January 2018, victims of competition law infringements can seek compensation before the Bulgarian courts
The very aim of the Damages Directive (“the Directive”) is to encourage and facilitate parties (both natural persons and legal entities) to obtain full redress for harm suffered from violation of antitrust rules. The main planks of the Directive are: the principle of equivalence (remedies for violation of EU competition rules equally favourable to those for breach of domestic provisions) and the effectiveness principle (award of full compensation comprising actual loss, loss of profit and interest).
The Directive is transposed into Bulgarian law through an act amending and supplementing the Protection of Competition Act, thus revoking the single article that covered compensation claims so far.
In the first place, actions for damages can be brought for harm suffered from violation of national provisions for prohibited agreements, abuse of a dominant position, including infringements of Arts 101 and 102 of the TFEU. Specific anticompetitive behaviour such as unfair competition practices (e.g. tarnishing a competitor’s good name) and abuse of a stronger bargaining position fall outside the scope of these provisions. The Directive stipulates that final decisions by national competition authorities and by review courts enjoy binding effect as to the infringer and the fact of infringement.
The rules apply only to proceedings triggered after 26 December 2014. Although not explicitly provided for by the implementing act, the limitation period for bringing actions is 5 years ‒ the minimum requirement set by the Directive.
Harm and quantifying harm
The injured party must prove harm suffered from an infringement. Additionally, a rebuttable presumption is established that cartels cause harm. Thus, the burden of proof shifts to the defendant to refute the presumption. Besides, the defendant can invoke the passing-on defence, i.e. that the claimant has passed on the whole or part of the overcharge resulting from infringement. The burden of proving passing-on rests with the defendant.
Quantification of harm might be a relatively problematic issue for the court. Hence the assistance of the competition authority can be sought on this matter.
Access to evidence
Disclosure of evidence in the control of the defendant or third parties will be ordered in favour of a claimant upon submission of reasoned justification. However, an exemption applies to the following documents:
- Internal documents of the national competition authority and its correspondence with other regulators
- Leniency statements
- Settlement submissions.
Until recently, no claims for damages are reported to have been lodged with the Bulgarian courts under the statutory framework prior to implementation. It remains to be seen how and to what extent victims of antitrust violations will benefit from the new rules.
Source: Act amending and supplementing the Protection of Competition Act (State Gazette, issue No 2/03.01.2018), Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union