SERBIA Law and Practice Contributed by: Milica Subotić and Julijana Jevtić, Subotić Law
• a controlling shareholding; • ownership or ownership rights over the assets (or parts of the assets) of an undertaking; • rights deriving from contracts or securities; • receivables or guarantees over receivables; and • business practice determined by the controlling undertaking. In addition, the said Act recognises two categories of control: sole and joint. Acquisition of a minority shareholding is caught by merger control only when it grants de facto or de jure (sole or joint) control of the acquiring undertakings over the target. As per the existing practice of the Serbian NCA, effective control over the company includes: • potential to decide the most important/strategic business decisions independently; • potential to dispose independently of major value assets; and/or • holding of veto rights not limited exclusively to the protection of its investors’ interests. 2.5 Jurisdictional Thresholds According to the Competition Act, a merger notifica - tion must be filed with the Serbian NCA if the following thresholds are met: • the combined aggregate annual worldwide turno - ver of all parties to the concentration exceeds EUR100 million, and (ii) at least one of the par - ties to the concentration generated a turnover in excess of EUR10 million on the Serbian market; or • the combined aggregate annual turnover of at least two parties to the concentration on the Serbian market exceeds EUR20 million, and (ii) each of at least two of the parties to the concentration gener - ated a turnover in excess of EUR1 million on the Serbian market. The Competition Act provides a special rule where the control over a Serbian joint stock company is acquired through a public bid, in which case, regardless of whether the above thresholds have been fulfilled, the concentration must be notified.
Furthermore, based on said Act, the Serbian NCA may open an ex officio investigation proceeding even when the above-mentioned thresholds were not met if the following two conditions are fulfilled: (i) a market share of the parties to the concentration in Serbia is at least 40% or there is a reasonable indication that the con - centration is to be prohibited; and (ii) the transaction has already been implemented. However, it is yet to be seen how this rule will be applied by the Serbian NCA. Special jurisdictional thresholds applicable to par - ticular sectors have not been prescribed; however, the applicability of the sector-specific regulation (as noted in 1.2 Legislation Relating to Particular Sec- tors ) requires prior approval of a competent regulator, irrespective of whether the above jurisdictional thresh - olds for the merger filing have been met. 2.6 Calculations of Jurisdictional Thresholds Turnovers are calculated by taking into account all revenues derived from the sale of products or provi - sion of services in the year preceding the year in which the concentration is notified. The Competition Act pro - vides special rules for the calculation of the turnover applicable to banks, credit institutions and financial entities as well as insurance companies. Amounts expressed in euros are calculated in RSD at the mid-market exchange rate of the National Bank of Serbia on the day of calculation of the annual turnover. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds The turnover that is considered for the purpose of cal - culating the thresholds differs according to the type of transaction, as follows. • In the acquisition of sole control, for the acquiring party, turnover is the group consolidated turnover and, for the seller, the turnover of the target. The value of exports must be deducted for the calcula - tion of local (domestic) turnover. • In a merger, turnover is the group consolidated turnover of all merging undertakings. • In the acquisition of joint control over a joint ven - ture, turnover is the group consolidated turnover of all parent companies and, in the case of a pre-
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