MONTENEGRO Law and Practice Contributed by: Bisera Andrijasevic and Marija Ksenija Popović, BDK Advokati
investment of at least 10% of capital or voting rights, or any investment granting significant influ - ence over management or any increase in the existing qualifying shareholding that would raise it to or above 20%, 30% or 50%, in a Montenegrin insurance company must be pre-approved by the Insurance Supervision Agency. • Telecommunications: the Agency for Electronic Communications and Postal Services is compe - tent to provide an opinion to the Agency regarding the assessment of concentrations or other forms of joint or co-ordinated actions by operators. As a competition protection measure, the Agency for Electronic Communications and Postal Services may also prescribe conditions prohibiting the transfer of radio frequency usage rights or estab - lish conditions for transfers that are not subject to concentration assessment under competition protection regulations if such a transfer could sig - nificantly distort market competition. 1.3 Enforcement Authorities As mentioned at 1.1. Merger Control Legislation , the Agency ( Agencija za zaštitu konkurencije Crne Gore ) is responsible for the enforcement of the Competition Act. Depending on the sector in which the relevant merg - er occurs, the Agency may engage other regulatory authorities in the review process, such as the Central Bank of Montenegro, the Agency for Electronic Com - munications and Postal Services and the Insurance Supervision Agency. In addition, enforcement powers are shared with mis - demeanour courts, which are responsible for imposing fines in separate proceedings based on the Agency’s findings. This dual structure brings the system closer to a “judicial” national competition authority model within the meaning of the ECN+ Directive.
tions to the compulsory notification, regardless of the local nexus. The Agency may, upon learning of an implemented concentration, require the concentration participants to notify the concentration, regardless of their turno - vers, if their combined market share on the relevant market in Montenegro exceeds 60%. The burden of proving the percentage of the joint market share of the concentration participants lies with the Agency. 2.2 Failure to Notify The new Competition Act provides for a distinc - tion between less serious infringements and serious infringements of competition, including in the field of merger control. A failure to notify a concentration, ie, a breach of the standstill obligation, is classified as a less seri - ous infringement under the new Competition Act. Accordingly, a fine of up to 1% of the total world - wide annual turnover generated by the undertaking in the last financial year for which closed financial statements are available, preceding the year in which the decision imposing the fine is adopted, may be imposed for such infringement. The previous Com - petition Act prescribed fines ranging from 1% to 10% of the relevant turnover for breaches of the standstill obligation. It remains to be seen whether this provision will be revised in future amendments aimed at closer alignment with the EUMR, particularly to reflect the EU’s fining policy, which places greater emphasis on deterrence. By contrast, the implementation of a prohibited concentration is treated as a serious infringement, for which a fine of up to 10% of the undertaking’s total worldwide annual turnover in the last financial year preceding the adoption of the decision may be imposed. The Agency may not impose a fine for a failure to noti - fy independently; it may only initiate misdemeanour proceedings. In practice, misdemeanour proceedings currently last for more than a year. Only a few fines have been imposed and those have been at the lowest end of the prescribed range.
2. Jurisdiction 2.1 Notification
Notification to the Agency is compulsory if the trans - action meets the turnover thresholds (as outlined in 2.5 Jurisdictional Thresholds ). There are no excep -
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