Concessions

1. Competent authority

The competent body before which the decisions, actions and omissions (which impede the access or participation of persons in the procedure) of the grantor are appealed under the procedure for determining the concessionaire, as well as the decisions of the commission for removal of candidates from participation in the competitive procedure and in competitive dialogue, is the Commission for Protection of Competition (CPC). The CPC is an independent specialized state body entrusted with the implementation of competition law. The seat of the commission is in Sofia.

From 01.01.2018, the new Law on Concessions (LC) enters into force, which determines the terms and conditions for conducting the procedures for their provision, as well as appeal proceedings. Concessions for sea beach are awarded, implemented and controlled under the conditions pursuant to the Black Sea Coast Development Act (LCA), respectively the decisions of the grantor on these procedures are subject to appeal before the CPC. The LCA is a special law regarding the LCA.

The decisions of the grantor for the concessions granted under the Water Act and the Mineral Resources Act are subject to appeal before the relevant administrative court under the Administrative Procedure Code, and not before the CPC.

2. Appeal before the CPC

Chapter Six of the Insurance Code describes the appeal proceedings. According to Art. 156, para. 1 of the CA, any decision of the grantor under the procedure for determining a concessionaire is subject to appeal, as well as the decisions of the commission for removal of candidates from participation in a competitive procedure with negotiation and competitive dialogue. The decisions under para. 1 shall appeal to the CPC regarding their legality, including the presence in the announcement, in the concession documentation or in any other document created during the procedure for determining the concessionaire, of requirements violating the principles of publicity, transparency, proportionality, equality and non-admission. of discrimination. Actions or inactions of the grantor, which prevent the access or participation of persons in the procedure for determining the concessionaire, are also subject to appeal.

The actions of the grantor for issuing the decisions under Art. 156, para. 1, as well as the decisions of the commission other than those for removal of candidates from participation in a competitive procedure by negotiation and in a competitive dialogue. The decision of the commission for removal of a participant in an open procedure shall be appealed together with the decision of the grantor for appointment of a concessionaire or with the decision for termination of the procedure. Decisions under the Insurance Code adopted by the Council of Ministers and the Municipal Council are not subject to appeal.

The procedure of Chapter Ten of the Administrative Procedure Code shall apply to all unresolved issues regarding the appeal procedure before the CPC.

The LCA contains a number of rules, in deviation from the general norms of the LC, due to the specifics of the relations it regulates, namely those for granting a concession on a sea beach. The law contains explicit legal norms as to which decisions issued under the procedure are subject to appeal before the CPC - the decision to initiate the procedure, the decision to appoint a concessionaire and the decision to terminate the procedure.

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3. Deadline for appeal to the CPC

An appeal against the decision to initiate the procedure or against a decision approving a notice of amendment may be filed by any interested person within 10 days of the publication in the National Concession Register of the notice of initiation of the procedure or notice of amendment.

An appeal may be filed by any interested candidate and any interested participant within 10 days from:

- the notification or notification of the respective decision, with the exception of the decision of the commission for removal of a participant in an open procedure, the term for appeal of which starts from the notification of the decision to appoint a concessionaire, respectively to terminate the procedure;

- the knowledge of an action or inaction under Art. 156, para. 3, and when the person has not been notified - from the date on which the term for performance of the respective action has expired, but not later than the conclusion of the concession contract.

According to §1, item 3 of the RD of the IC "Interested candidate" is a candidate who is excluded from participation in the procedure for determining a concessionaire in the admission and / or selection, but is not notified of the removal or appeal proceedings of the decision by which he was removed has not been completed.

According to §1, item 4 of the RD of the IC "Interested participant" is a participant who is classified but not designated as a concessionaire, as well as a participant who is excluded from participation in the procedure for determining a concessionaire, but the decision has been removed, has not entered into force.

According to §1, item 5 of the Additional Provisions of the IC "Interested person" is a person who has or has had an interest in concluding a concession contract and who has been or may be harmed by the alleged violation.

Only an interested candidate and an interested participant within the meaning of §1, item 3 and item 4 of the Additional Provisions of the Insurance Act may appeal against actions and inactions of the grantor, which prevent their access or participation in the procedure for determining a concessionaire.

When the complaint is filed by mail, the ten-day period is counted from the date (of sending) of the postmark on the envelope, if the complaint is entered in the CPC office, by hand of the complainant - from the date of filing.

Special rules regarding the deadlines for appeals are contained in the LPCA. The decision to initiate the procedure (Art. 8e, para 2) may be appealed within 10 days of its promulgation in the State Gazette, pursuant to Chapter Six of the Concessions Act. Accordingly, the decision to appoint a concessionaire (Art. 8m, para. 3) is subject to appeal against its legality under Chapter Six of the Concessions Act, and the term is 10 days from its publication in the State Gazette.

The complaint can also be submitted by e-mail, electronically signed, to the CPC, at: [email protected]

4. Content of the complaint

The complaint is submitted to the CPC with a copy to the grantor, who has organized the procedure for determining the concessionaire, in writing and in Bulgarian.

The complaint must contain:

1. name of the body to which it is submitted;

2. data about the complainant, when it is:

(a) legal entity: name, registered office and address of management, and registration details according to the register in which it is entered, if any, as well as e-mail address and / or fax for receiving notices and subpoenas;

b) natural person: name, address and identity data, as well as e-mail address and / or fax for receiving messages and summonses;

c) group of economic operators - the relevant data under letter "a" or letter "b" for the operator representing the group or for the lead partner;

3. name and address, including e-mail address of the grantor, who has organized the procedure for determining a concessionaire;

4. data for the procedure for determination of a concessionaire and for the decision, action or inaction, which is appealed;

5. alleged violations on which the complaint is based;

6. request of the complainant;

7. signature of the person filing the complaint or of his / her proxy.

The following shall be attached to the complaint:

1. a copy of the appealed decision, when it has not been published in the "Official Gazette" of the European Union, in the "State Gazette" or in the National Concession Register;

2. evidence for observance of the term under art. 157, para. 1 of the Insurance Code;

3. power of attorney, when the appeal is filed by a proxy;

4. document for paid state fee;

5. proof for sending the complaint to the grantor;

6. other evidence available to the complainant.

The fee for instituting proceedings under Chapter Six of the CA before the CPC amounts to BGN 1,700 according to the Tariff for Fees Collected in Proceedings under Chapter Six of the Concessions Act before the Commission for Protection of Competition and the Supreme Administrative Court, adopted by the Council of Ministers. № 177 of 20.08.2018, promulgated, SG, no. 70 of 24.08.2018

The amounts for fees are paid by bank account to the account of the CPC in the BNB - Central Office, as follows:

BNB Fee Account - Head Office, Al. Battenberg ”№ 1;

IBAN: BG32 BNBG 9661 30 00 1017 01; BIC: BNBGBGSD

Amounts for deposits (guarantees) BNB - Head Office, Al. Battenberg ”№ 1;

IBAN: BG67 BNBG 9661 33 00 1017 01; BIC: BNBGBGSD

When the complaint does not meet the requirements of the CA, the chairman of the CPC sends a notice to the complainant and sets a 5-day deadline for elimination of the irregularities (Article 158, paragraphs 3 and 4 of the CA).

The chairman of the CPC does not initiate proceedings when: 1. the appeal is filed after the expiration of the respective term under Art. 157, para. 1 of the Insurance Code; 2. the irregularities have not been eliminated within the term under art. 158, para. 4 of the Insurance Code; 3. the appeal is withdrawn before the initiation of the proceedings; 4. the act, action or inaction is not subject to appeal.

In the above cases, the chairman of the CPC returns the appeal with an order, which is subject to appeal with a private appeal before a three-member panel of the Supreme Administrative Court within 7 days of notification of the parties. The court rules on the private appeal within 14 days from the initiation of the proceedings in closed session with a ruling, which is final (Article 159 of the CA).

5. Internal course of production:

Подадените в КЗК жалби получават входящ номер.

След входиране на жалбата в КЗК, се осъществява предварителния контрол, при който се проверява, дали същата съдържа задължителните реквизити по смисъла на закона. Когато жалбата не отговаря на изискванията на ЗК, председателят на КЗК изпраща съобщение на жалбоподателя и определя 5-дневен срок за отстраняване на нередовностите (чл. 158, ал. 3 и 4 от ЗК).

Председателят на Комисията за защита на конкуренцията образува производство, с разпореждане, в тридневен срок от постъпване на жалбата или от отстраняване на нередовностите по нея. С разпореждането за образуване председателят на КЗК служебно конституира страните и определя член на КЗК, който наблюдава проучването по жалбата и при необходимост дава указания. След като производството е образувано, председателят със заповед определя служители от състава на администрацията на КЗК за извършване на проучване по жалбата, наричани по-нататък "работен екип". Когато концесията съдържа или изисква класифицирана информация, членовете на работния екип трябва да имат разрешение за достъп до класифицирана информация до съответното ниво съгласно изискванията на Закона за защита на класифицираната информация.

Когато се обжалва решение на комисия, като страна в производството се конституира концедентът, който организира процедурата за определяне на концесионер. За образуваното производство се уведомява концедентът. Концедентът изпраща становище по жалбата, към което прилага цялата преписка по процедурата за определяне на концесионер, както и други доказателства, ако разполага с такива, в тридневен срок от получаване на уведомлението за образуването на производството.

След получаването на жалбата концедентът, съответно комисията могат да преразгледат въпроса и да отстранят твърдяното в жалбата нарушение. Отстраняването се извършва в 7-дневен срок от получаването на жалбата, а когато жалбата е срещу решение, което подлежи на одобрение от Министерския съвет, съответно от общински съвет - в 14-дневен срок. Актът, с който се отстранява нарушението, подлежи на обжалване, като чл. 162, ал. 1 не се прилага (чл. 162 от ЗК). За всички неуредени въпроси относно процедурата по обжалване пред КЗК се прилага редът на глава десета от Административнопроцесуалния кодекс (чл. 163 от ЗК).

Когато е образувано производство по жалба срещу решение за определяне на концесионер и не е допуснато предварително изпълнение, КЗК служебно проверява за наличие на висящо производство срещу друг акт по същата процедура за определяне на концесионер. Когато установи наличие на друго висящо производство, КЗК спира образуваното по жалбата производство до окончателното решаване на спора по висящото производство. Производството по жалбата се възстановява служебно или по искане на една от страните след влизането в сила на решенията по висящите производства (чл. 168 от ЗК).

6. Suspension of the procedure

According to Art. 164 of the CA, the appeal against a decision to appoint a concessionaire suspends the procedure for appointing a concessionaire until the final resolution of the dispute. An appeal against a decision to terminate the procedure, which includes a decision to conduct a new procedure for designating a concessionaire or to conduct a repeat procedure, suspends the new or the repeated procedure until the final settlement of the dispute. Apart from the above cases, the complaint suspends the procedure for determining the concessionaire only when a request for suspension of the procedure has been made.

According to Art. 165, para. 1 of the CA, a request for suspension of the procedure for determining a concessionaire shall be made simultaneously with the filing of the appeal. The request shall be substantiated, including by the application of relevant evidence. A request that is not made at the same time as the complaint is not considered. The CPC should rule on the request in closed session with a reasoned ruling within 7 days of initiating the proceedings on the complaint, leaving the procedure suspended or disregarding the request.

The Commission for Protection of Competition shall rule on the request after assessing the possible consequences of suspending the procedure for all interests that may be harmed, including the public interest and the interests related to national security and defense, life and health of citizens, the environment, protected areas, zones and sites and public order made on the basis of the allegations in the complaint, the reasons set out in the request, the opinion of the grantor, if any, and the evidence provided by the parties. The CPC may not grant the request when the negative consequences for all interests that may be harmed outweigh the benefits of the suspension. The ruling on the request does not bind the CPC in resolving the dispute on the merits and does not affect the other requests of the complainant. The ruling imposing an "interim measure" or refusing to impose it is subject to appeal with a private appeal before a three-member panel of the Supreme Administrative Court within 5 days of its notification to the parties. The court shall rule on the private appeal within 14 days from the initiation of the proceedings in closed session with a ruling, which is final. The appeal against the ruling on the request for suspension of the procedure does not suspend the proceedings before the Commission for Protection of Competition.

7. Preliminary execution of the decision for determination of a concessionaire

When the filed appeal is against a decision for appointing a concessionaire or against a decision for termination of the procedure, which includes a decision for conducting a new procedure for appointing a concessionaire or for conducting a repeated procedure, with its opinion on the appeal under Art. 160, para. 3, the grantor may, within the term for submission of the opinion on the appeal, request from the CPC admission of preliminary execution of the appealed decision. The request shall be substantiated, including by the application of relevant evidence. A request for preliminary execution made after this term is not considered by the CPC. The grantor should substantiate his request and provide evidence in support of his allegations.

The CPC shall rule on the request for admission of preliminary execution with a motivated ruling in a closed session within 3 days of receiving the opinion. Request under para. 1, which does not contain reasons, shall be left without consideration.

The CPC allows preliminary execution exceptionally in order to ensure the life and health of citizens, to protect particularly important state or public interests or when the delay in execution may result in significant or difficult to repair damage, including the object of the concession or activity, which must be done by the concessionaire. Preliminary performance is not allowed when motivated by economic interests that lead to disproportionate consequences, including costs resulting from the postponement of the concession contract or from conducting a new, respectively repeated procedure for determining the concessionaire, change of the concessionaire under the contract or the payment of compensation and / or other sanctions.

The ruling by which the CPC rules on the special request is subject to appeal before the Supreme Administrative Court within 5 days of its notification to the parties. The Supreme Administrative Court shall rule on the ruling in closed session within 14 days from the initiation of the proceedings on the private appeal. The private complaint suspends the admissible preliminary execution.

8. Conducting the study

The investigation of the file is carried out by the working team and covers the circumstances of the complaint. In the course of the investigation of the proceedings instituted before the CPC, written and oral evidence / witness testimony / and expert opinions are allowed. The Commission for Protection of Competition may refer to information that is publicly available or officially known.

Evidence gathered in proceedings before the CPC may not be disclosed if it constitutes legally protected information, sensitive information or information designated as confidential. When the evidence contains data representing classified information, the Classified Information Protection Act shall apply.

When using expert opinions in the proceedings before the CPC, the amounts for remuneration of the experts shall be paid in advance by the party that requested the expertise. When appointing an expert at the initiative of the CPC, the costs of remuneration of the experts are assigned to the complainant - when the complaint is dismissed or the proceedings are terminated, and in other cases - to the grantor.

When a request for expertise is made, the CPC rules on it with a protocol ruling, which allows or does not allow the appointment of an expert opinion. The protocol ruling is not subject to appeal, as it does not block the course of the proceedings and is not specified in a special law. The parties to the proceedings shall be notified of the ruling.

9. Assistance

The parties to the proceedings, the state bodies and the officials are obliged to render assistance to the CPC in fulfilling the obligations assigned to it by law. All evidence gathered in the proceedings before the CPC may not be disclosed if it constitutes legally protected information, sensitive information or information designated as confidential. When the evidence contains data representing classified information, the Classified Information Protection Act shall apply.

10. Summoning and serving messages

According to Art. 171, para 1 of the Insurance Code, the service of notices and subpoenas shall be carried out electronically at an electronic address or by fax, as follows: for the grantor - at the address indicated in the announcement for opening the procedure; for the complainant - at the address or fax specified in the complaint; for the other parties - at the address where they received notifications in the procedure for determining the concessionaire, unless they have indicated another address or fax in the appeal proceedings.

The time limit for summoning shall be not less than three days before the meeting. Messages and subpoenas shall be deemed to have been served upon receipt in the specified information system, respectively upon receipt of an automatically generated message confirming the sending by fax, and shall be certified with a copy of the electronic record, respectively with a copy of the automatically generated message. When they have an unknown address or fax, or cannot be found at the address indicated by them, they are considered notified by publishing a notice in the public register on the CPC website.

11. Meeting

After the completion of the investigation, the working team presented to the supervising member of the CPC a report containing a factual and legal analysis of the case, as well as a proposal on how to complete the proceedings. The supervisory member of the CPC notifies the chairman of the completion of the investigation, and the latter with a resolution schedules an open meeting to consider the file. Until the day before the hearing, the parties have the right to get acquainted with the evidence gathered in the file.

The parties are obliged to present all their evidence no later than the day before the hearing

The meetings of the commission are regular when at least four of the CPC members are present. The open session begins with an examination of whether there is a ground for dismissal of a member of the commission, then proceeds to resolve preliminary questions regarding the regularity of the proceedings. The parties to the proceedings may be asked questions in accordance with the procedure laid down by the President. When he considers that the circumstances of the appeal have been clarified, the chairman of the meeting shall give the parties an opportunity to comment. After clarifying the dispute on the factual and legal side, the chairman closes the meeting.

12. Decision of the CPC

The Commission for Protection of Competition adopts decisions and makes determinations by open voting and by a majority of 4 votes. Where less than seven members are present, the decision shall be taken only if at least four members of the committee have voted in favor.

The Commission for Protection of Competition in closed session adopts a decision by which: it dismisses the complaint; annul the unlawful decision to initiate the procedure; annul the illegal decision or action or establish the illegal inaction and with mandatory instructions return the file for continuation of the procedure for determining the concessionaire from the last lawful decision or action, and where applicable - for termination of the procedure, or declare the decision null and void.

When a decision to appoint a concessionaire is appealed and preliminary execution is allowed, as a result of which a concession contract is concluded, the CPC establishes the illegality of the decision without revoking it and imposes on the grantor the sanction under Art. 183, para. 1 of the Insurance Code (Art. 175, para 2 of the Insurance Act).

The CPC shall rule on the appeal with a decision within two months from the initiation of the proceedings, when the concession has a cross-border interest, and within one month - when the concession has no cross-border interest.

The decision of the CPC, together with the reasons for it shall be prepared and announced to the parties in the proceedings within 14 days from the ruling.

The decision of the CPC is subject to appeal before a three-member panel of the SAC within 14 days of its notification to the parties to the proceedings. The Supreme Administrative Court shall rule within one month of receiving the appeal and its decision shall be final.

For unresolved issues regarding the appeal proceedings before the Supreme Administrative Court, the terms and conditions of Chapter Twelve of the Administrative Procedure Code (Article 178 of the CA) shall apply.

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13. Termination of the proceedings

In Art. 171 of the Insurance Code also regulate the cases in which the CPC terminates the initiated proceedings by a ruling. They are: in case of inadmissible appeal; when the applicant - a natural person, has died or the legal entity has been terminated without a successor; upon withdrawal of the appeal.

The ruling is subject to appeal, according to Art. 167 before a three-member panel of the Supreme Administrative Court within 5 days of its notification to the parties. The appeal suspends the execution of the order. The court shall rule within 14 days from the initiation of the proceedings in closed session with a ruling, which is final.

14. Sanctions

According to Art. 183 of the CA, when a concession contract is concluded after preliminary execution and the illegality of the decision to appoint a concessionaire is established or the annulment of the appealed decision is declared, the CPC with the decision under Art. 175, para. 2, respectively the Supreme Administrative Court with the decision under Art. 178, para. 2 imposes on the grantor a sanction in the amount of 5 per cent of the value of the concession. A sanction in the amount of one percent of the value of the concession shall be imposed on a grantor in the cases under Art. 175, para. 3 of the Insurance Code.

Sanctions are imposed and paid from the budget of the grantor who has organized the procedure for determining the concessionaire, including when the established violation is committed by the commission appointed by him (Article 184 of the CA).

15. Expenses

The CPC also decides on the responsibility for the expenses under the conditions and by the order of art. 143 of the APC. The CA does not specify the types of expenses. They are defined in the APC and are: the paid state fees; production costs; the remuneration of one lawyer / legal adviser, if the party has used the services of such.

Within the term for appeal, the CPC, at the request of the parties, may supplement or amend the decision in its part on costs. The order for costs shall be issued in closed session and served on the parties. It may be appealed in the order in which the decision is subject to appeal.

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