MONTENEGRO Law and Practice Contributed by: Bisera Andrijasevic and Marija Ksenija Popović, BDK Advokati
of their turnovers, if their combined market share on the relevant market in Montenegro exceeds 60%. The burden of proving the percentage of the joint market share of the concentration par - ticipants lies with the Agency. 2.2 Failure to Notify A fine for failure to notify a concentration is pre - scribed in the amount of 1% to 10% of the turn - over generated in the year preceding the year when the infringement occurred. The law does not specify whether the fine percentage is based on global or national turnover, but in practice the court has calculated fines based on the turnover generated by the acquirer in Montenegro. There have been precedents where, if the acquirer is a foreign company, the Agency initiates misde - meanour proceedings for both late filing and gun-jumping against its related entity in Monte - negro, regardless of its role in the concentration (see 2025 Trends & Developments). The Agency may not impose a fine for a fail - ure to notify independently, it may only initiate misdemeanour proceedings. This is expected to change with the upcoming amendments to the Competition Act, which will confer on the Agency the authority to impose fines directly. Currently, in practice, the misdemeanour pro - ceedings last for more than a year. The fines have been few and imposed at the lowest end of the prescribed range. If a legal entity is fined for gun-jumping, the responsible person within the entity shall be automatically fined between EUR1,000 and EUR4,000. If the competition authority subsequently prohib - its the transaction, it can impose divestment or other appropriate measures. There is no criminal liability for the breach.
The decisions of the Agency on finding the infringement of competition and imposing any measures are published on the Agency’s web - site. However, the Agency publishes only the executive part of the decision, without the rea - soning. The decisions of misdemeanour courts in which the monetary penalties are imposed are published on the website of the court, however, with a considerable delay. 2.3 Types of Transactions The concentration of market participants is con - sidered to be: • the merger of two or more independent undertakings or their parts; • when one or more undertakings or individu - als, who already control at least one under - taking, gain direct or indirect control over another undertaking or its part (with two or more transactions taking place between the same undertakings within a period of up to two years being treated as a single concen - tration); or • when two or more independent undertakings establish a new undertaking or jointly acquire control over an existing undertaking, provided that this entity operates independently on a long-term basis and performs all the func - tions of an independent market participant (joint ventures). An acquisition of control is not regarded as a concentration in the following cases. • When a bank or other financial institution temporarily acquires shares or securities of an undertaking with the intent to resell them, provided that the resale occurs within 12 months of acquisition. During this holding period, the acquirer must not exercise owner - ship rights in a way that would influence the
382 CHAMBERS.COM
Powered by FlippingBook