SERBIA Law and Practice Contributed by: Milica Subotić and Julijana Jevtić, Subotić Law
3.5 Information Included in a Filing In line with relevant by-laws, there are two types of notification: the short and the long form, both avail - able on the website of the Serbian NCA. A concentration eligible for a short-form notification should meet one of the following conditions. • where two or more undertakings merge, or one or more undertakings acquire sole or joint control over another undertaking or a part thereof, provided that no party to the concentration is active in the same relevant product and geographic markets, or in the same relevant product market as any other party to the concentration upstream or downstream; • where two or more undertakings merge, or one or more undertakings acquire sole or joint control over another undertaking or a part thereof, provided that the following conditions are met: (a) the aggregate market share of all parties in a horizontal merger is lower than 20%; and (b) the individual or aggregate market share of all parties in a vertical merger is lower than 30%; • where the notifying party acquires sole control over an undertaking over which it already has joint control; and • where the aggregate market share of all the hori - zontally related parties in the concentration is lower than 40% and the change (delta) in the HHI result - ing from the concentration is less than 150. If none of the above-specified criteria are met, the concentration must be notified in the regular (long- form) notification. The Serbian NCA can also request that a long-form filing be submitted in cases where the facts of the case indicate that a concentration does meet the criteria for it to be approved. The merger notification must be submitted in the Ser - bian language, and it must be undersigned by the legal representatives of the notifying parties. All appendices can be submitted as copies, while documents in a foreign language must be submitted along with their translation into Serbian by a sworn court interpreter. The Serbian NCA may request any other information it considers relevant for the assessment of the intended concentration, and, if it is not provided, the notification might be dismissed.
On 11 November 2009, the Serbian NCA issued an opinion explaining that a bidder might opt to file a merger notification within 15 days following either the publication of the public bid or the closing of the bid. 3.2 Type of Agreement Required Prior to Notification The parties may notify a transaction if they demon - strate their serious intent to enter into an agreement (eg, by signing a letter of intent, announcing their intent to make a takeover offer, or any other similar act demonstrating serious intent). In its Notice on notifications filed based on serious intent, published on 5 July 2016, the Serbian NCA explained that the document evidencing serious intent must explicitly show such intent of all parties to engage in the transaction and must be signed by all of them. If such document deviates in key facts on which the Serbian NCA based its clearance decision from the final and binding transactional document, the parties will bear all the risks connected with imple - menting such a transaction contrary to said decision. 3.3 Filing Fees The filing fee for clearance decisions issued in a sum - mary (Phase I) proceeding is 0.03% of the combined annual turnover of the undertakings concerned – capped at EUR25,000. For clearance decisions in an investigation (Phase II) proceeding, the fee is 0.07% of the combined annual turnover of the undertakings concerned – capped at EUR50,000. The said fees are to be paid within three days follow - ing the submission of the notification, failing which, the notification will be deemed withdrawn. 3.4 Parties Responsible for Filing Under the Competition Act, if an undertaking acquires control over the whole or part of one or more other undertakings, the undertaking acquiring the control must file the merger notification. In the case of joint ventures, a notification is to be submitted by the joint venture partners.
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