MONTENEGRO Law and Practice Contributed by: Bisera Andrijasevic and Marija Ksenija Popović, BDK Advokati
4.4 Competition Concerns The Agency assesses whether to approve a concen - tration by evaluating its impact on preventing, restrict - ing or distorting effective competition in the Monte - negrin market, with a particular focus on the creation or strengthening of a dominant position, using the criteria outlined in 4.1 Substantive Test . The Agency primarily investigates the effects on hori - zontally affected markets, concentrating on unilateral effects, especially in cases where there is a signifi - cant increase in market share or the elimination of a close competitor. In cases where the parties are active on different levels of the supply chain in related mar - kets, the Agency will investigate potential foreclosure effects. Conversely, the Agency rarely focuses on co- ordinated effects, conglomerate or portfolio effects, elimination of potential competition, or concerns related to innovation. 4.5 Economic Efficiencies The Agency considers the economic efficiencies of a concentration put forward by the parties in the noti - fication, particularly if these efficiencies benefit con - sumers. However, this is not frequently presented by the parties, and there are no publicly available deci - sions in which the Agency has analysed the economic The Agency does not, and is not mandated to, take non-competition concerns into account when review - ing concentrations. Montenegro has not yet introduced separate rules for the notification of foreign direct investments. 4.7 Special Consideration for Joint Ventures The substantive review of full-function joint ventures is conducted based on the same substantive test out - lined in section 4.1 Substantive Test . The Agency may also consider any spill-over effects on the activities of the parent companies outside of the joint venture, and any potential co-ordination issues between the parents would be examined under the rules on restric - tive agreements. efficiencies resulting from a merger. 4.6 Non-Competition Issues
• trends in supply and demand for the relevant goods or services; • technological and economic advancements; and • consumer interests. 4.2 Markets Affected by a Transaction Guidelines for defining relevant markets in a concen - tration are outlined in the Rulebook on the Relevant Market. To define the relevant market, the Agency applies the criteria of demand substitutability for the relevant product, as well as supply substitutability, depending on the assessed competitive conditions. This includes consideration of the existence and level of development of potential competitors and barriers to market entry. While the Agency reviews the market definition pro - posed by the notifying parties, it is not bound by their suggestion. The Agency relies on its own precedents and the European Commission’s decisional practice. Notifying parties are advised to support their market definition proposals with relevant precedents from EU case law. In practice, the Agency primarily focuses on markets where both parties to a concentration are active, par - ticularly those involving horizontal overlaps. There is no de minimis threshold, and the Agency also evalu - ates markets where the parties are active at different levels of the supply chain to assess any potential com - petitive impact on vertically related markets. In concentrations where the parties’ activities do not overlap and there are no vertically affected markets, the Agency typically analyses the relevant market based on where the target is active. If there are no competitive concerns because the parties are not present in the relevant market, the Agency generally leaves the market definition open. 4.3 Reliance on Case Law The Agency relies on its own decisional practice, which is mostly not publicly available, as the explana - tory parts of merger decisions are not published. In addition, the Agency also draws on the European Commission’s case law.
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