MONTENEGRO Law and Practice Contributed by: Bisera Andrijasevic and Marija Ksenija Popović, BDK Advokati
5.5 Conditions and Timing for Divestitures The Competition Act explicitly allows the Agency to impose measures to be complied with either before or after the implementation of the concentration. There - fore, the specific deadline for the implementation of each remedy is set out in the clearance decision. If the parties fail to comply with the measures, the Agency has the authority to revoke its decision. Failure to comply with the agreed-upon remedies may result in fines of up to 10% of the undertaking’s total annual worldwide turnover from the financial year pre - ceding the violation. The new Competition Act has abolished the statutory minimum threshold for such fines. 5.6 Issuance of Decisions The new Competition Act introduces enhanced trans - parency rules in merger control proceedings. Unlike under the previous regime, decisions are now pub - lished in full on the Agency’s official website, while only the operative part ( dispozitiv ) of such decisions is published in the Official Gazette of Montenegro. Prior to publication, the parties are invited, immediately upon receipt of the decision, to identify and request the redaction of any information that qualifies as a business secret, for the purpose of ensuring appropri - ate anonymisation. In addition, it is noteworthy for concentration partici - pants that, following a merger notification, the Agency publishes brief information on the notification in the Official Gazette of Montenegro, including in particu - lar: (i) the names of the parties to the concentration; (ii) the nature and form of the transaction; and (iii) the relevant economic sector in which the concentration takes place. This is relevant in cases where the trans - actions are still confidential at the time the merger notification is submitted. In such case, it is advisable to communicate with the Agency in order to request a delay of the publication. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions Prohibitions and conditional approvals of concentra - tions are rare in the Agency’s decisional practice. The low notification thresholds result in a significant num - ber of foreign-to-foreign transactions being notified
to the Agency. These transactions are assessed irre - spective of the presence or absence of local effects. However, as they generally do not raise competition concerns, foreign-to-foreign transactions are typically cleared unconditionally in summary proceedings. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Neither the Competition Act nor its accompanying bylaws explicitly regulate ancillary restraints. Never - theless, the Agency evaluates ancillary restraints fol - lowing the principles set out in the European Commis - sion’s Ancillary Restraints Notice. Ancillary restraints that meet the criteria established in the Notice are considered part of the transaction and are covered by the Agency’s clearance decision. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties, including persons submitting initiatives to the Agency, providing information and documents, or any other interested parties or organisations, do not have the status of a party to the proceedings before the Agency nor are they formally involved in the review process. However, there are several ways in which third parties may influence the procedures before the Agency. Any person may submit an initiative to the Agency to investigate a potential infringement of competi - tion. In its merger review process, the Agency pub - lishes a notice for each notified concentration, which includes the names of the parties, their related entities in Montenegro, and a brief description of the concen - tration. Third parties may submit concerns regarding a notified concentration. When the Agency opens an investigation and conducts a full review of a noti - fied concentration, it invites all interested parties to provide information and suggestions and may also send questionnaires directly to competitors or other undertakings in related or vertically integrated mar -
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