Decision No 2/97 of the Association Council between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part of 7 October 1997 adopting the implementing rules for the application of the competition provisions referred to in Article 64(1)(i), (1)(ii) and (2) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria of the other part, and in Article 9(1)(i), (1)(ii) and (2) of Protocol 2 on ECSC products to that Agreement
Date: 1997-10-07
Institutions: EC–Bulgaria Association Council
Subjects: Bulgaria, association agreement (EU), competition law, iron and steel product

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(Acts whose publication is not obligatory)

COUNCIL

DECISION No 2/97 OF THE ASSOCIATION COUNCIL

between the European Communities and their Member States, of the one part,
and the Republic of Bulgaria, of the other part

of 7 October 1997

adopting the implementing rules for the application of the competition provi-
sions referred to in Article 64(1)(i),
(1)(ii) and (2) of the Europe Agreement
establishing an association between the European Communities and their
Member States, of the one part, and the Republic of Bulgaria of the other part,
and in Article 9(1)(i), (1)(ii) and (2) of Protocol 2 on ECSC products to that Agree-
ment

(98/82/EC, ECSC)

THE ASSOCIATION COUNCIL,

HAS DECIDED AS FOLLOWS:

Having regard to the Europe Agreement establishing an
association between the European Communities and their
the one part, and the Republic of
Member States, of
Bulgaria, of the other part, and in particular Article 64(3)
thereof,

Having regard to Protocol 2 on ECSC products to that
Europe Agreement, and in particular Article 9(3) thereof,

Whereas Article 64(3) of the Europe Agreement lays down
that the Association Council shall, within three years of
the entry into force of the Agreement, adopt by decision
the necessary rules for the implementation of paragraphs
1 and 2 of that Article;

Whereas Article 9(3) of Protocol 2 to the Europe Agree-
ment lays down that the Association Council shall, within
three years of the entry into force of the Agreement,
adopt by decision the necessary rules for the implementa-
tion of paragraphs 1 and 2 of that Article,

Sole Article

The implementing rules for the application of the com-
petition provisions referred to in Article 64 (1)(i),
(1)(ii)
and (2) of the Europe Agreement establishing an associa-
tion between the European Communities and their
the one part, and the Republic of
Member States, of
Bulgaria, of the other part, and in Article 9(1)(i), (1)(ii) and
(2) of Protocol 2 on ECSC products to that Agreement, as
set out in the Annex to this Decision, are hereby adopted.

Done at Brussels, 7 October 1997.

For the Association Council

The President

J. POOS

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ANNEX

Implementing rules for the application of the competition provisions referred to in Article
64(1)(i),
(1)(ii) and (2) of the Europe Agreement establishing an association between the
European Communities and their Member States, of the one part, and the Republic of
(1)(ii) and (2) of Protocol 2 on ECSC
Bulgaria, of the other part, and in Article 9(1)(i),

products to that Agreement

Article 1

2.1.2. This situation may arise in particular in cases concerning

activities that:

General principle

Cases relating to agreements between undertakings, decisions by
associations of undertakings and concerted practices between
undertakings which have as their object or effect the prevention,
restriction or distortion of competition as well as to abuses of a
dominant position in the territories of the Community or of
Bulgaria as a whole or in a substantial part thereof, which may
affect
trade between the Community and Bulgaria, shall be
settled according to the principles contained in Article 64(1) and
(2) of the Europe Agreement.

For this purpose, these cases are dealt with by the Commission
(DG IV) on the Community side and the Committee for the
Protection of Competition (CPC) on the Bulgarian side.

The competences of the Commission and the CPC to deal with
these cases shall flow from the existing rules of the respective
legislation of
including where
these rules are applied to undertakings located outside the
respective territory.

the Community and Bulgaria,

Both authorities shall settle the cases in accordance with their
own substantive rules, and having regard to the provisions set out
below. The relevant substantive rules of the authorities are the
competition rules of
the Treaty establishing the European
Community as well as the Treaty establishing the European Coal
and Steel Community,
including the competition-related sec-
ondary legislation, for the Commission, and the Bulgarian Act on
the Protection of Economic Competition for the CPC.

ECONOMIC ACTIVITIES PURSUANT TO THE EC TREATY

— involve anticompetitive activities carried out

in the

other authority’s territory,

— are relevant

to enforcement activities of

the other

competition authority,

— involve remedies

that would require or prohibit

conduct in the other authority’s territory.

2.1.3. Notification pursuant to this Article shall include suffi-
cient information to permit an initial evaluation by the
recipient party of any effects on its interests. Copies of the
notifications shall be submitted on a regular basis to the
Association Council pursuant to the Europe Agreement.

2.1.4. Notification shall be made in advance, as soon as possible
and at the latest at the stage of an investigation still far
enough in advance of the adoption of a settlement or deci-
sion, so as to facilitate comments or consultations and to
enable the proceeding authority to take into account the
other authority’s views, as well as to take such remedial
action it may find feasible under its own laws, in order to
deal with the case in question.

2.2. Consultation and comity

Whenever the Commission or the CPC consider that anti-
competitive activities carried out on the territory of the
other authority are substantially affecting important in-
terests of the respective Party, it may request consultation
with the other authority, or it may request that the other
Party’s competition authority initiate any appropriate
procedures with a view to taking remedial action under its
legislation on anticompetitive activities. This is without
the requesting Party’s
prejudice to any action under
competition law and does not hamper the full freedom of
ultimate decision of the authority so addressed.

Article 2

Competence of both competition authorities

2.3.

Finding of an understanding

Cases pursuant to Article 64 of the Europe Agreement which
may affect both the Community and the Bulgarian market and
which may fall under the competence of both competition
authorities shall be dealt with by the Commission and the CPC,
according to the rules within the meaning of this Article.

2.1. Notification

The competition authority so addressed shall give full and
sympathetic consideration to such views and factual ma-
terials as may be provided by the requesting authority and,
in particular, to the nature of the anticompetitive activities
the enterprises involved and the alleged
in question,
harmful
the
requesting Party.

effects on the

interests of

important

2.1.1. The competition authorities shall notify to each other
those cases they are dealing with, which, according to the
general principle laid down in Article 1, appear also to fall
under the competence of the other authority.

Without prejudice to any of their rights or obligations, the
competition authorities involved in consultations within
the meaning of this Article shall endeavour to find a
mutually acceptable solution in the light of the respective
important interests involved.

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Article 3

in accordance with the provisions contained in Article 9 of these
implementing rules.

Competence of one competition authority
only

3.1. Cases falling under

the exclusive competence of one
competition authority, in accordance with the principle
laid down in Article 1, and which may affect important
interests of the other Party, shall be handled having regard
to the provisions set out in Article 2, and taking account
of the principles set out below.

3.2.

In particular, whenever one of the competition authorities
undertakes an investigation or proceeding in a case which
is found to affect important interests of the other Party,
the proceeding authority shall notify this case to the other
authority, without formal request by the latter.

Article 4

Request for information

Whenever the competition authority of a Party becomes aware of
the fact that a case, falling also or only under the competence of
the other authority, appears to affect important interests of the
first Party, it may request information about this case from the
proceeding authority.

The proceeding authority shall give sufficient information to the
extent possible and at a stage of its proceedings far enough in
advance of the adoption of a decision or settlement to enable the
requesting authority’s views to be taken into account.

Article 5

Secrecy and confidentiality of information

5.1. Having regard to Article 64(7) of the Europe Agreement,
neither competition authority is required to provide infor-
mation to the other authority if disclosure of that informa-
tion to the requesting authority is prohibited by the law of
the authority possessing the information, or would be
incompatible with important interests of the Party whose
authority is in possession of the information.

5.2.

Each authority agrees to maintain, to the fullest extent
possible, the confidentiality of any information provided
to it in confidence by the other authority.

Article 6

Block exemptions

In the application of Article 64 of the Europe Agreement as
provided for in Articles 2 and 3 of these implementing rules, the
competition authorities shall ensure that the principles contained
in the block exemption regulations in force in the Community
are applied in full. The CPC shall be informed of any procedure
related to the adoption, abolition or modification of block
exemptions by the Community.

Where such block exemption regulations encounter
serious
objections on the Bulgarian side, and having regard to the
approximation of legislation as provided for in the Europe Agree-
ment, consultations shall take place in the Association Council,

The same principles shall apply regarding other significant
changes in the Community or Bulgarian competition policies.

Article 7

Merger control

With regard to mergers which fall within Council Regulation
(EEC) No 4064/89 of 21 December 1989 on the control of
concentrations between undertakings (1) and have significant
impact on the Bulgarian economy, the CPC shall be entitled to
express its view in the course of
the procedure taking into
account the time limits as provided for in the abovementioned
Regulation. The Commission shall give due consideration to that
view.

Article 8

Activities of minor importance

8.1. Anticompetitive activities whose effects on trade between
the Parties or on competition are negligible do not fall
within Article 64(1) of the Europe Agreement and there-
fore are not to be treated within Articles 2 to 6 of these
implementing rules.

8.2. Negligible effects within the meaning of paragraph 8(1)

are generally presumed to exist when:

— the aggregate annual

turnover of

the participating

undertakings does not exceed ECU 200 million, and

— the goods or services which are the subject of the
Agreement
together with the participating under-
takings’ other goods or services which are considered
by users to be equivalent in view of their characteris-
tics, price and intended use, do not represent more
than 5 % of the total market for such goods or services
in the area of the common market affected by the
Agreement and the Bulgarian market affected by the
Agreement, respectively.

Article 9

Association Council

9.1. Whenever the procedures provided for in Articles 2 and 3
do not lead to a mutually acceptable solution, as well as in
other cases explicitly mentioned in these implementing
rules, an exchange of views shall take place in the Associa-
tion Council at the request of one Party within three
months following the request.

9.2.

Following this exchange of views, or after expiry of the
period referred to in paragraph 9.1,
the Association
Council may take appropriate recommendations for the
settlement of these cases, without prejudice to Article 64(6)
of the Europe Agreement in these recommendations, the
Association Council may take into account any failure of
the requested authority to give its point of view to the
requesting authority within the period referred to in para-
graph 9.1.

(1) OJ L 395, 30. 12. 1989. p. 1. Regulation as last amended by Regulation

(EEC) No 2367/90 (OJ L 219, 14. 8. 1990, p. 5).

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9.3.

These procedures in the Association Council are without
prejudice to any action under the respective competition
laws in force in the territory of the Parties.

ECONOMIC ACTIVITIES PURSUANT TO THE ECSC
TREATY

Article 10

Negative conflict of competence

When both the Commission and the CPC consider that neither
of them is competent to handle a case on the basis of their
respective legislation, an exchange of views shall take place on
request
in the Association Council. The Community and
Bulgaria shall endeavour to find a mutually acceptable solution
in the light of the respective important interests involved with
the support of the Association Council, which may make appro-
priate recommendations, without prejudice to Article 64(6) of the
Europe Agreement, and the rights of individual Member States of
the European Communities on the basis of their competition
rules.

Article 11

Treaty establishing the European Coal and Steel Com-
munity (ECSC)

The provisions contained in Articles 1 to 6 and 8 to 10 shall also
apply with respect to the coal and steel sector as referred to in
Protocol 2 to the Europe Agreement.

Article 12

Administrative assistance (languages)

The Commission and the CPC shall provide for practical ar-
rangements for mutual assistance or any other appropriate solu-
tion concerning in particular the question of translations.