SERBIA Law and Practice Contributed by: Milica Subotić and Julijana Jevtić, Subotić Law
5.6 Issuance of Decisions A formal decision permitting or prohibiting a transac - tion is issued to the notifying parties. The Serbian NCA publishes a non-confidential version of its clearance decision on its website. Furthermore, the said authority publishes on its web - site a decision to open an investigation (Phase II) pro - ceeding immediately after its adoption, and invites all undertakings that might have information and docu - ments relevant for the assessment of the subject con - centration to submit them to the Serbian NCA as soon as possible. The said decision of the Serbian NCA contains a summary of the notification, with a descrip - tion of the key elements of the concentration. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions To date, the Serbian NCA has prohibited implementa - tion of transactions only twice. Both decisions were issued ten years ago. Decisions ordering remedies do occur, but not reg - ularly. There is no difference between the remedies required in local as opposed to foreign-to-foreign transactions. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Neither the Competition Act nor any by-laws regu - late ancillary restraints. In practice, the Serbian NCA uses the European Commission’s Ancillary Restraints Notice as a framework for its own appraisal of con - centration, so ancillary restraints are to be covered by a clearance decision. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties, including competitors, may be involved through their answers to the Serbian NCA’s RFIs or market surveys. In the case of investigation (Phase II)
significantly restrict, distort or prevent competition. In such case, the authority shall issue a statement of objections to the notifying party to notify the facts and evidence on which it intends to base its decision, and shall ask the notifying party to provide its comments. In its reply, the notifying party may also suggest obli - gations and conditions which it is willing to undertake with the aim of removing the anti-competitive con - cerns identified. If said authority concludes that such remedies are sufficient, it will clear the transaction. Remedies may be of a structural or behavioural nature. The decisional practice of the Serbian NCA shows that behavioural remedies are used more often. 5.3 Legal Standard There is no legal standard that remedies must meet to be deemed acceptable. However, as per the practice of the Serbian NCA so far, such remedies must be proportionate and directly related to the competition concerns at hand. 5.4 Negotiating Remedies With Authorities Even though the Competition Act suggests that the remedies can be offered only when the Serbian NCA issues a statement of objections to the notifying par - ties, in practice remedies could be offered from the beginning of the merger control process, even before initiation of an investigation (Phase II) proceeding. The Serbian NCA cannot propose or impose, by its deci - sion, remedies not being proposed by the notifying party. 5.5 Conditions and Timing for Divestitures The conditions and timings for all types of remedies are individual and vary case by case. Parties to the concentration may complete a transac - tion only when the Serbian NCA has made the rem - edies binding in its clearance decision. If the remedies are implemented after the deadline set out in the clearance decision, the Serbian NCA may impose a fine of up to 10% of the undertaking’s turnover generated in the Serbian market. It may also order the undertaking to dissolve the concentration in order to restore the market to the position that existed before its implementation.
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