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25 October 2018
In Decision 1046 of 20 September 2018, the Commission for the Protection of Competition (CPC) approved the acquisition of Rapido Express and Logistics OOD by its competitor Speedy AD in accordance with Article 26(1) of the Protection of Competition Act. However, at the same time, the CPC penalised Speedy AD for failing to provide in its concentration notification complete and accurate information which the commission deemed materially and substantially important for evaluating the deal.
The CPC determined that Speedy AD's failure to provide complete and accurate information about the concentration had violated Article 47(5) of the Protection of Competition Act, which lists a general obligation on undertakings to provide full and accurate informational assistance to the competition authority.
This is the first time that the CPC has penalised an undertaking for failing to provide complete and accurate information about a concentration under Article 47(5) while simultaneously approving the deal.
The CPC accepted that the notified operation, under which Speedy AD had obtained direct and sole control over its competitor Rapido Express and Logistics OOD, had led to a concentration that fell within the meaning of the Protection of Competition Act. According to the act, participant undertakings must inform the CPC in advance of their intention to complete a concentration if the sum of all of the undertakings' turnovers for the previous financial year is above Lev25 million. In the present case, these thresholds and the obligation to notify the CPC of the intended concentration were deemed to have been met by the respective undertakings.
The CPC authorises concentrations which do not create or strengthen dominant positions that could materially jeopardise effective competition in the relevant market. Having analysed the concentration between Rapido Express and Logistics OOD and Speed AD, the CPC established that the structure of the market for providing courier services would remain unchanged as the proposed deal would not establish a dominant position because the market share of Speedy AD after the concentration would be no larger than 40%. Therefore, the CPC found no evidence to reject the deal.
The CPC found enough reason to penalise Speedy AD for failing to provide the information required for the commission to conduct an objective evaluation of the deal. The penalty followed an opinion from a registered competitor of Speedy AD that had informed the commission about a prior concentration deal, according to which Rapido Express and Logistics OOD had acquired the going concern of its competitor D&D Express EOOD. As the notifier had failed to inform the CPC of the prior deal, Speedy AD was penalised with 0.2% of its turnover for 2017 or the sum of Lev205,622.
This is the first time that the CPC has penalised an undertaking for failing to provide complete and accurate information specifically for a concentration. Until now, Article 47(5) of the Protection of Competition Act applied only to instances of unfair competition. This provision issues a general obligation for undertakings to provide full and accurate information to the CPC when requested to do so. Now, it seems that the provision also applies to information contained in concentration notifications.
For further information on this topic please contact Galina Petkova or Rosen Manchev at Advokatsko Druzhestvo Andreev Stoyanov & Tsekova in cooperation with Schönherr by telephone (+359 2 933 1072) or email (email@example.com or firstname.lastname@example.org). The Advokatsko Druzhestvo Andreev Stoyanov & Tsekova website can be accessed at www.schoenherr.eu.
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