MONTENEGRO Law and Practice Contributed by: Bisera Andrijasevic and Marija Ksenija Popović, BDK Advokati
If the competition authority subsequently prohibits the transaction, it can impose divestment or other appro - priate measures. There is no criminal liability for the breach. The decisions of the Agency on finding the infringe - ment of competition and imposing any measures are published on the Agency’s website. The decisions of misdemeanour courts in which the monetary penalties are imposed are published on the website of the court, however, with a considerable delay. 2.3 Types of Transactions The concentration of market participants is consid - ered to be: • the merger of two or more independent undertak - ings or their parts; • when one or more undertakings or individuals, who already control at least one undertaking, gain direct or indirect control over another undertaking or its part (with two or more transactions taking place between the same undertakings within a period of up to two years being treated as a single concen - tration); or • when two or more independent undertakings establish a new undertaking or jointly acquire con - trol over an existing undertaking, provided that this entity operates independently on a long-term basis and performs all the functions of an independent market participant (joint ventures). An acquisition of control is not regarded as a concen - tration in the following cases. • When a bank or other financial institution tempo - rarily acquires shares or securities of an undertak - ing with the intent to resell them, provided that the resale occurs within 12 months of acquisition. During this holding period, the acquirer must not exercise ownership rights in a way that would influ - ence the undertaking’s business decisions, particu - larly regarding its behaviour toward competitors, and should only hold the shares for the purpose of preparing for the sale of the securities or assets in the market. The Agency may extend the 12-month period by an additional six months at the request of a financial institution, provided the institution
demonstrates that the sale of the securities was not possible within the original 12-month period. • When control is acquired by an individual acting in the capacity of a bankruptcy or liquidation admin - istrator, as prescribed by the applicable bankruptcy or liquidation laws. • When a joint venture is established with the objec - tive of co-ordinating market activities between two or more undertakings that maintain their independence. In such cases, the joint venture will be evaluated under the rules governing restrictive agreements. Internal restructurings or reorganisations are not caught by the merger control provisions. On the other hand, operations not involving the transfer of shares or assets may be considered a concentration and caught by the merger control provisions if such operations lead to de facto acquisition of direct or indirect control over an independent undertaking or a part thereof. 2.4 Definition of “Control” In order to constitute a concentration, a transaction must lead to a change of control over an undertak - ing or a part of an undertaking. The Competition Act defines control as a situation where one undertaking has: • more than half of the shares or stakes in another undertaking; or • more than half of the voting rights; or • the right to appoint the majority of members of the management board or persons authorised to repre - sent the company in accordance with the law; or • a decisive influence on the management and busi - ness operations of the company. An acquisition of a minority or other interest may be caught under the merger control provisions if such acquisition alone or in combination with other factors provides the acquirer with the possibility to exercise decisive influence on the management and business operations of the company. 2.5 Jurisdictional Thresholds The Agency must be notified of a concentration if:
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