MONTENEGRO Law and Practice Contributed by: Bisera Andrijasevic and Marija Ksenija Popović, BDK Advokati
Bank of Montenegro as of the last day of the relevant year. Foreign-to-foreign transactions are reviewed by the Agency as long as the turnover thresholds are met, with no requirement for a local nexus for the Agency to assess the transaction on its merits. The Competition Act sets out specific rules for calculating the turnover applicable to banks, insurance companies and other financial insti - tutions. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds In the case of an acquisition of sole control, the turnover calculation should include the total rev - enue of the acquirer’s group, while only the tar - get’s total revenue is considered from the seller’s side. In a merger, the calculation encompasses the consolidated group turnover of all merging enti - ties. For joint ventures, the total group revenue of both partners is included, and if the joint venture involves an existing company, its turnover is also required. If control is acquired over only part of a company, only the revenue attributable to that specific part is considered. Montenegrin legislation does not address whether the changes in the business during the reference period should be reflected in the turn - over calculation. However, considering that the Agency relies on the EU legislation, including the Jurisdictional Notice, the notifying party should adjust the turnover in line with the provisions on the adjustments after the date of the last audited accounts to take into account the changes in the
business and therefore the economic reality of the parties’ economic strength. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions are subject to Montenegro’s merger control regime if they meet the specified turnover thresholds, regardless of whether the transaction has local effects. The Agency has not adopted the local nexus doc - trine, and no local presence is required, as the thresholds can be met through sales made by the parties via local distributors. A filing may be required even if only one party to the concentration exceeds the thresholds. As a result, notifications may be triggered even when the target has no sales or assets in Montene - gro, based solely on the acquirer’s revenues. In 2023, only about 6.5% of all cleared concentra - tions were implemented in Montenegro, with the remainder involving foreign-to-foreign transac - tions. 2.9 Market Share Jurisdictional Threshold There are no market share-based thresholds in Montenegro. 2.10 Joint Ventures Joint ventures are subject to merger control provided that they constitute a “full-function” joint venture. This means the joint venture must operate independently on a long-term basis and perform all the functions of an autonomous eco - nomic entity, such as having its own manage - ment, resources and financial independence to carry out its business activities on the market. A joint venture that is merely auxiliary to its par - ent companies or lacks the capability to oper - ate independently will not fall under the scope of merger control but may instead be assessed under rules governing restrictive agreements.
384 CHAMBERS.COM
Powered by FlippingBook