MONTENEGRO Law and Practice Contributed by: Bisera Andrijasevic and Marija Ksenija Popović, BDK Advokati
5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The Agency may prohibit a transaction if, based on the assessment criteria outlined in 4.4 Competition Concerns , it determines that the concentration would significantly restrict, distort or prevent effective mar - ket competition in the relevant market, particularly through the creation of a dominant position or the strengthening of an existing one. The Agency may also issue a conditional approval of a concentration. If it determines that the concentra - tion would prevent, restrict or distort competition, it will issue a statement of objections to inform the par - ties about the established facts, circumstances and conclusions reached during the investigation. The notifying party may propose measures to address the concerns raised by the Agency. The Agency may accept or amend the proposed measures, ordering their implementation, setting deadlines, and defining monitoring methods. If the parties fail to comply with the imposed remedies, the Agency will revoke the conditional approval of the concentration. Additionally, if a concentration is implemented with - out, or in violation of, the Agency’s decision, the Agen - cy may require the parties to dissolve the concentra - tion to restore market conditions to their state prior to implementation. To achieve this, the Agency may order the divestment of shares, the limitation or pro - hibition of voting rights, or the termination of control over the acquired target by other means. 5.2 Parties’ Ability to Negotiate Remedies The parties may propose and negotiate remedies to address any competition concerns raised by the transaction (see 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions ). Remedies can be pro - posed in response to the statement of objections but may also be submitted earlier in the process if the parties anticipate specific competition concerns that could be raised by the Agency. In practice, the Agency typically imposes soft behav - ioural measures, such as reporting obligations (eg, notifying the Agency of changes in processes, com -
mercial conditions, concluded contracts or offers), obligations to conclude contracts with suppliers and/ or customers, and similar measures. The Agency does not consider non-competition con - cerns and, as a result, has not imposed any measures related to such concerns. 5.3 Legal Standard There is no strict legal standard for acceptable rem - edies under the Competition Act. However, based on the Agency’s practice, remedies must be proportion - ate and directly address the identified competition concerns. Remedies should aim to resolve antitrust issues without exceeding what is necessary. Measures may be aimed at correcting or preventing competition violations, and can be either behavioural (requiring or prohibiting specific actions) or structural (such as the divestment of assets or the termination of joint ventures). Structural measures are imposed only when behavioural remedies are deemed insufficient, excessively burdensome, or if previously imposed behavioural measures were not fully implemented. 5.4 Negotiating Remedies With Authorities During the procedure, and no later than 30 days after receiving the statement of objections, the notifying party may propose measures, conditions and dead - lines to the Agency to address the negative effects of the concentration on the relevant market. If the Agency finds the proposed measures, conditions and deadlines sufficient to restore effective competi - tion in the market, it may issue a decision mandating the implementation of these measures along with the terms and deadlines for their enforcement. Although the Competition Act suggests that reme - dies can only be proposed after the Agency issues a statement of objections, in practice, remedies can be offered from the outset of the merger control process, even before an investigation (Phase II) is initiated. The Agency cannot propose or impose remedies that were not suggested by the notifying party.
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