MONTENEGRO Law and Practice Contributed by: Bisera Andrijasevic and Marija Ksenija Popović, BDK Advokati
restrictive agreements. Please see 2.5 Jurisdictional Thresholds for the rules on calculating the revenues in the context of joint ventures for jurisdictional assess - ment purposes. 2.11 Power of Authorities to Investigate a Transaction Transactions are subject to the Agency’s merger con - trol regime only if they meet the turnover thresholds outlined in 2.5 Jurisdictional Thresholds . As previously indicated in 2.1 Notification , the Com- petition Act grants the Agency the authority to require the parties to notify an already closed transaction that does not meet the turnover thresholds if their market share of the parties in a relevant market in Montenegro exceeds 60%. According to information which is pub - licly available, the Agency has never used this power. A procedure to establish a violation of the Competition Act cannot be initiated if more than three years have passed since the violation occurred, with an absolute statute of limitations of six years from the date of the violation. 2.12 Requirement for Clearance Before Implementation The implementation of a transaction cannot proceed until the merger approval is obtained or the statutory deadlines for the Agency’s decision-making have expired. An exception to this rule applies in the case of a public sale conducted in accordance with the law (see 2.14 Exceptions to Suspensive Effect ). For multi-step transactions, the Competition Act stip - ulates that two or more transactions (eg, acquisition of shares or stakes) between the same undertakings, conducted within a period of less than two years, shall be treated as a single concentration. In such cases, clearance for the concentration must be obtained before implementing the first transaction. 2.13 Penalties for the Implementation of a Transaction Before Clearance If a party implements a transaction without prior noti - fication or in breach of the standstill obligation, it may be fined up to 1% of its total worldwide turnover generated in the financial year preceding the infringe -
ment. Under the new Competition Act, fines of up to 10% of the undertaking’s worldwide turnover are pre - scribed for serious infringements, while fines of up to 1% apply to less serious infringements. In that sense, the implementation of a transaction prior to clearance is currently classified as a less serious infringement. This approach does not appear to be fully aligned with EU competition law standards and practice, and it remains to be seen whether future amendments will address this issue. Furthermore, the new Competition Act no longer pro - vides for fines against responsible individuals, likely as a result of a legislative oversight during the con - solidation of the amendments, as this deletion did not appear in earlier draft versions. It remains to be seen whether such liability will be reinstated through future amendments. The Agency does not have the authority to impose fines for gun-jumping but may initiate misdemeanour proceedings, which are then conducted by competent misdemeanour courts. These courts handle their own proceedings and impose fines. Although it had been expected that the new Competition Act would transfer the power to impose fines directly to the Agency, this was not the case. It remains to be seen if this power will be transferred to the Agency in the near future, as it is still being considered at the policy level. In practice, misdemeanour proceedings often take more than a year to conclude. Fines have been rare and are typically imposed at the lowest end of the prescribed range, sometimes even below the mini - mum, as permitted by the Misdemeanour Act in cases of mitigating circumstances. Fines have also been imposed in instances of foreign-to-foreign transac - tions, and notably on the local subsidiaries of foreign entities which committed the relevant infringement. Decisions of misdemeanour courts are generally published on the courts’ web pages, with the par - ties’ identities protected (using initials instead). How - ever, in practice, these decisions are often published with significant delays and inconsistently, with some misdemeanour courts failing to make any decisions publicly available.
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