We have heard this question often from clients and peers, mainly from foreign jurisdictions. We’ve always responded that this is a relevant question and it must not be neglected since it needs to be considered along with all associated risks (such as legal, financial, reputational, etc.) and costs. We say: “If you are a third party to a competition investigation and you’ve received a formal information and documents request (because you have been identified by the authority as a competitor, customer, supplier or other stakeholder), take some time, read the questionnaire and do what’s necessary to respond to all questions.

If the time is insufficient to respond and provide requested documents, you can ask for an extension. If you ignore the request or respond incompletely and vaguely, the competition authority would hardly ignore your failure to respond adequately and will penalize you. The fines can be substantial. Finally, this request may be unpleasant or unexpected, but try to think of it as an opportunity to express your point of view and ultimately although indirectly influence your marketplace and improve your market or bargaining position.”

The Bulgarian Competition Commission (CPC) has the power to request information and documents from third parties in the context of pending investigation proceedings but also at an earlier stage, i.e. when collecting and analyzing available evidence and considering whether such evidence is sufficient to open a formal investigation on an alleged infringement of the applicable competition laws. In both cases, the Competition Commission routinely sends documents requests to third parties (other than the complainant(s) and the alleged infringer(s)) that may have relevant information and evidence relating to the subject-matter of the investigation. Virtually any person (an institution, an individual or a legal entity) may be an addressee of such a request: the relevant sector regulator (the Communications Regulation Commission, the Bulgarian National Bank, etc.), the relevant industry or a general non-sector business association(s), competitors, customers, suppliers, and the list goes on.

The deadline for a response is fairly short (7-10 days) and sometimes information requests may be extensive and detailed, some of the requested documents / originals may not be available at the addresses’ Bulgarian offices or available only in a foreign language. The Bulgarian CPC would normally take into consideration that in some circumstances additional time might be objectively necessary for the addressee to respond. Hence, it is almost always willing to extend the submission deadline upon receipt of a reasoned written request for extension.

The failure to respond to an information and documents request of the competition authority is subject to a fine in the maximum amount of 1 per cent of the infringer’s aggregate annual turnover in the preceding financial year.

As an illustration, earlier in November, the CPC imposed a fine of over BGN 102,ooo (i.e. approx. 52,000 euro) on a third party (Energy Market JSC) for failure to respond to a documents request. And ordered the company to respond to the request within additional 7 days (CPC-316/2015 EVN Trading South East Europe v National Electricity Company). Absent a response within the new deadline, once the penalty decision becomes effective, the infringer may be subject to a more severe fine for a failure to comply with a CPC decision.