SERBIA Law and Practice Contributed by: Milica Subotić and Julijana Jevtić, Subotić Law
tion will be considered incompatible with the Serbian market where it would significantly impede effective competition in the market, in particular because of the creation or strengthening of a dominant position. 4.2 Markets Affected by a Transaction When determining which markets may be affected by the transaction, the Serbian NCA considers the mar - ket definition proposed by notifying parties, but also it investigates alternative market definitions, relying on its own practice as well as the European Commis - sion’s decisional practice. In cases where the market definition is rather complex, the Serbian NCA may query competitors and customers in order to obtain their opinions. The focus of the Serbian NCA is on the markets where both parties to the concentration perform economic activity (horizontal overlaps); however, vertically con - nected markets are also assessed. The concept of a de minimis level is not applicable. 4.3 Reliance on Case Law The decisional practice of the Serbian NCA, including on market definitions, follows its own case law and, quite often, the European Commission’s decisional practice. 4.4 Competition Concerns As explained in 4.1 Substantive Test , the test against which a concentration will be assessed by the Serbian NCA is whether it would cause a “significant restric - tion, distortion or prevention of competition, particu - larly as a result of the creating or strengthening of a dominant position”. It includes a review of the horizontal, vertical and/or conglomerate aspects of the proposed concentration. Pursuant to the Competition Act, the said authority shall base its appraisal on considering: • structure of the relevant market; • existing and potential competitors; • market position of the parties to the concentration and their economic and financial power; • freedom of choice when choosing suppliers and consumers; • legal and other market entry barriers;
• the level of competitiveness of the parties to the concentration; • trends of supply and demand of relevant goods and/or services; • trends of technical and economic development; and • consumers’ interests. 4.5 Economic Efficiencies The Serbian NCA has a legal basis to take into account economic efficiencies when assessing concentra - tions; however, this ground is rarely referred to. 4.6 Non-Competition Issues When assessing a transaction, the Serbian NCA should not take into account non-competition issues. Rules separate from merger control in the case of for - eign direct investments do not exist, and filings for foreign direct investments are not required. 4.7 Special Consideration for Joint Ventures Full-function joint ventures are analysed by means of the same substantive test as other concentrations. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The Serbian NCA may prohibit a concentration if it leads to a significant restriction, distortion or preven - tion of competition in the Serbian market, particularly where it would create or strengthen a dominant posi - tion. The authority must issue its prohibition decision in writing and provide a detailed explanation of the reasons for its conclusions. In addition, where a concentration has been imple - mented in breach of the Competition Act or contrary to a prohibition decision, the authority may require the undertakings concerned to dissolve the concentra - tion in order to restore the market to the position that existed before its implementation. 5.2 Parties’ Ability to Negotiate Remedies A notifying party may negotiate remedies if the Serbi - an NCA concludes that the proposed transaction will
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