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Competition & Antitrust
The European Commission recently adopted the 'enlargement package' for 2020, which encompasses reports on candidate and potential candidate countries' progress towards EU accession. The progress reports contain, among other things, an assessment of the level of harmonisation of the Western Balkan countries' national competition laws with EU competition law and practice.
The government recently lifted the state of emergency which had been declared due to the COVID-19 pandemic, allowing normal operations to gradually resume. As a result, all deadlines for the Commission for the Protection of Competition and parties to proceedings that ended between 24 March 2020 and 6 May 2020 are now deemed to end on 5 June 2020. This includes the submission of merger notifications, responses to requests for information, decisions and clearances.
The Commission for the Protection of Competition has published its first leniency decision in a cartel case, following a report by one of the cartel participants. The leniency programme was introduced in 2009 but had yet to yield results. The leniency decision is therefore a watershed moment in the programme's development and signals an improvement in the commission's anti-cartel enforcement record.
From 1 January 2020, Serbia will have a new state aid regime under the new Act on State Aid Control. One of the goals of the new act is to harmonise Serbia's state aid legal framework with EU law, which will help to advance the EU accession process and the implementation of Negotiation Chapter 8 – Competition Policy. Until now, market participants have not focused on compliance with the state aid rules, likely due to a lack of awareness and relatively lenient enforcement; this is expected to change under the new act.
The Serbian Competition Authority has initiated ex officio antitrust proceedings against Serbia Broadband – Srpske kablovske mreže doo Belgrade on grounds of suspected abuse of dominance. This is the first case in which the authority has initiated abuse of dominance proceedings based on soft behavioural remedy (ie, the obligation to report prices).
The Serbian Competition Authority and the European Bank for Reconstruction and Development have launched an initiative to establish a regional competition forum. The forum will include all Western Balkan states (Serbia, Bosnia and Herzegovina, Montenegro, Kosovo, Macedonia and Albania) and two EU member states (Slovenia and Croatia). The Centre for Liberal-Democratic Studies has been enlisted as a consultant to help design, implement and manage the forum's operations.
The Serbian Competition Authority has increased its dawn raid activity over the past year. Although conducting dawn raids has been a part of the authority's remit since 2009, no such raids were carried out until the end of 2015. To date, the authority has conducted dawn raids in approximately 10 of its proceedings. The majority of these raids were conducted to establish the existence of restrictive agreements.
The Competition Authority recently intensified its regional cooperation. Representatives of the authority met with colleagues from the Competition Council of Bosnia and Herzegovina and attended conferences organised by the competition authorities of Romania and Croatia. As a further step towards regional cooperation, there is a plan to establish the Competition Forum of the Western Balkans, with the aim of facilitating cooperation, enhancing harmonisation and improving national legislation.
The Competition Authority, together with the Ministry for Trade, Tourism and Telecommunications, recently lodged an initiative for the new Competition Act, which will replace the Competition Act 2009. The goal is to harmonise the new act with EU rules while observing the specific demands of the Serbian market. Once the draft is ready, it will be presented for public debate. Further, the authority has issued three draft block regulations for public review and comment.
The Competition Authority recently launched ex officio proceedings to investigate an acquisition of sole control by Prointer IT Solutions and Services doo over Alti doo. The investigation revealed that the concentration had been carried out without merger control clearance, leading the authority to fine Prointer din6.7 million.
During 2016 the Competition Authority issued 111 merger control decisions. Most of the notifying parties involved were foreign companies, while notifications filed by domestic companies made up approximately 24% of all filed notifications. The Competition Authority, which proved to be one of the busiest in the region, also conducted a number of sector inquiries.
The Competition Authority recently determined that two edible sunflower oil market competitors (Vital and Victoriaoil) had concluded a restrictive agreement that limited the production of edible oil and inhibited competition on the market. The authority imposed a fine of 0.33% of the total annual turnover generated in 2014 on the Serbian market. This was the first production cooperation agreement analysed by the authority.
The Commission for the Protection of Competition was the 2017 recipient of an honourable mention at the 2016-2017 Competition Advocacy Contest: Innovative Advocacy Strategies to Address Market Challenges. The article which brought the commission this recognition deals with implementing competition advocacy in government policymaking.
The Commission for the Protection of Competition recently adopted a decision to conduct a retail market study. The study will help to determine the relations between competitors on the retail market at the local, regional and national level. The study is also designed to encompass the wholesale market. The market study results will enable the commission to conduct an ex post assessment of the major concentrations that were carried out in the previous period.
The Commission for the Protection of Competition conditionally cleared the concentration brought about by Serbia Broadband's acquisition of Interaktivne kablovske objedinjene mreže. During the investigation, the commission obtained all of the necessary data, information and opinions on the effects of the concentration from the parties' competitors, broadcasters and independent regulatory bodies responsible for the data relevant to the proceedings.
The Commission for the Protection of Competition recently announced that after 10 years in operation, it believes that it is time to introduce changes to its existing practice of issuing opinions on request by market participants. The commission will now focus on matters relevant to the implementation of regulations that either were never explored or require additional clarification due to the changes that have since occurred.
The Competition Commission recently conducted a competition assessment of the Serbian insurance market between 2012 and 2015. The main objective of the assessment is to determine the market structure and the relationships between the largest competitors, as well as to detect market weaknesses that may ultimately result in competition infringement.
The president of the Competition Commission, Miloje Obradović, recently spoke at the Sub-committee on Internal Market and Competition meeting. He briefed the European Commission on all of the activities undertaken to implement the Competition Act and on the level of harmonisation of Serbian competition legislation with the acquis communautaire. Obradović emphasised that future sectoral analyses will focus on the markets that have caught the commission's attention in the past.
The Competition Commission recently issued a decision determining that Bora Kečić and Large Transport had engaged in bid rigging in a public tender procedure launched by public utility company Elektromreže Srbije. By entering into a restrictive agreement, these undertakings significantly restricted and distorted competition. The commission issued fines of approximately €8,000 per company.
The Competition Commission recently issued a decision determining that EPS Distribucija doo Beograd – the only operator on the Serbian electricity distribution market – abused its dominant position. The company was fined €3 million and issued with behavioural remedies aimed at creating equal conditions for doing business on the market. The commission took into account EPS Distribucija's cooperation during the proceedings.
The Foreign Investors Council recently presented the 2016 edition of the White Book – an overview of the traditional business climate in Serbia and recommendations for its improvement. The document notes considerable progress in the work of the Commission for the Protection of Competition. Key improvements include the adoption of the new Merger Notification Decree and the provision of information on the commission's work.
The Competition Authority intends to conduct a competition assessment on the retail market, focusing on non-specialised stores selling mainly food, beverages and tobacco. In the past 10 years in Serbia, there has been significant consolidation of the food retail and distribution market, which has affected the commercial relationship between retailers and their suppliers. The assessment should contribute to a better understanding of this relationship and its possible effects on competition.
The Competition Authority recently published the Aftermarkets Analysis, which covers warranties, repair services and the sale and use of spare parts for automotive and household appliance industries. The aim of the analysis was to determine the market structure and the relationship between leading undertakings in order to detect any shortcomings in the market. The results will be used to draft a decree on group exemption from the prohibition of vertical agreements in the motor vehicle sector.
The Competition Authority recently carried out a dawn raid at the premises of N Sport and acquired copies of agreements that the company had entered into with its customers. The agreements contained provisions obliging customers and retailers to comply with minimum retail prices set by N Sport when reselling their products. The concerned undertakings are at risk of severe fines of up to 10% of the total turnover generated in 2015, while the agreements could be declared null and void.
The Competition Authority recently adopted a decision conditionally clearing an acquisition in the sugar market in Serbia. As the resulting market share aggregation in the affected markets ranges from 60% to 80%, the Competition Authority recommended the introduction of operational requirements and restrictions to prevent any negative effects resulting from market saturation.
The Competition Authority recently published a statement clarifying the rules on submitting a merger notification based on the serious intent to implement a transaction (eg, a letter of intent). The authority pointed out that, when notifying a concentration on the basis of serious intent, the undertakings concerned assume the risk of any consequence that may result. If a letter of intent differs from the final agreement entered into by the parties following the authority's decision, they risk incurring a fine.
The Competition Authority recently investigated alleged abuse of dominance in the railway traffic market by state-owned railway company Zelezice Srbije. The authority determined that Zelezice Srbije was the only company operating railway traffic in the country and thus took measures to secure the establishment of effective competition in the market for access to public railway infrastructure.
The Commission for the Protection of Competition recently hosted several competition events, demonstrating its determination to cooperate with other competition authorities. So far this year, commission representatives took part in the Eighth Sofia Competition Forum, visited the Romanian Competition Authority and co-organised an international conference on institution building between the national competition authorities of Southeast Europe.
The Competition Authority recently conducted a dawn raid on the Belgrade premises of Philip Morris and British American Tobacco on the suspicion that competition infringement had occurred. The authority also initiated ex officio procedures, as it suspected that the companies had conspired in order to align prices. This is the authority's second dawn raid involving the tobacco market.
The Competition Authority recently investigated four companies for bid rigging in a tender organised by the Ministry of Defence for the procurement of uniforms and shoes in 2013. It fined them a total of approximately €300,000 and prohibited them from participating as bidders in public procurement for the next 18 months.
The Competition Authority recently launched several competition law infringement investigations, including an investigation against Belgrade's public utility company Infostan. Without having consulted the service receivers, Infostan included costs for insurance in a monthly invoice. Accordingly, the authority began an investigation, alleging that Infostan had abused its dominant position.
The Competition Authority has cleared leading pharmaceutical company Hemofarm's acquisition of family business Ivančić i sinovi, even though Hemofarm is expected to slightly increase its market share. The authority has also cleared Antenna Stream TV Limited Kipar's acquisition of Lake Blade Holding; both parties operate in the media market.
The Commission for Protection of Competition recently issued two decisions in proceedings against East Media Group (EMG) because of a reasonable assumption that a transaction had been implemented without obtaining merger control clearance. The commission fined EMG for failure to comply with its order to deliver the data and documentation required for the transaction's assessment.
The Commission for Protection of Competition has recently issued two conditional merger clearances concerning international transactions. The Holcim and Lafarge transaction resulted in a significant overlap between the parties' activities in the Serbian cement market, while the transaction between Alitalia and Etihad Airways involved the acquisition of joint control over a newly founded company that would control Alitalia's aviation business.
The Commission for the Protection of Competition has introduced a settlement proposal to the proceeding for determining a competition law violation. Undertakings against which proceedings are initiated can submit a settlement proposal only once the commission has issued a statement of objections. The commission is under no obligation to accept the settlement proposal.
The Commission for Protection of Competition recently decided to open an ex officio investigation against the Bar Association due to allegations that it had violated competition law rules on the legal services market in Serbia. The commission found that prescribing high fees for admission to the Bar directly restricts competition and creates unjustified market entry barriers.
On its annual 'competition day' the Commission for Protection of Competition held a round table on competition infringement in public procurement. It was concluded that Serbia must continue to improve the administrative capacities of the competent organisations and standardise its procedures. All public procurement authorities must cooperate, especially regarding the disclosure, prosecution and penalising of bid rigging.
Amendments to the Competition Act recently entered into force and aim to enhance and refine certain substantive and procedural aspects of Serbia's competition regime, as well as to strengthen the powers and institutional capacity of the Competition Authority. Some of these amendments are expected to have material effects on undertakings whose business is affected by competition law in any way.
The Competition Authority recently published a notice underlining the importance of compliance with merger filing obligations. The notice sends a clear message that failure to comply with the merger filing obligations will be considered as a serious infringement. It is a public warning to all market participants that the authority intends to implement the Competition Act consistently.
The Supreme Court has confirmed the Competition Authority's decision in a case where two companies had abused their dominance by insisting on non-negotiable exclusivity and fidelity clauses in their agreements concluded with 24 banks. The Competition Authority took a stand that consumers suffered harm due to supra-competitive pricing. The authority ordered amendments to the contracts and removal of the disputed clauses.
The Competition Authority recently held a conference on the current state of competition in Serbia, announcing certain changes to the Competition Act, including a new method for determining an undertaking's dominant position on the relevant market. A public debate followed the conference. Comments and suggestions from the public debate will be analysed by the Ministry of Foreign and Internal Trade and Telecommunications.
The Competition Authority has released a statement on an Administrative Court decision which imposed a €3 million fine on Frikom for abuse of a dominant position in the wholesale ice-cream market. The infringements included resale price maintenance in supply agreements and tying retailers and customers to purchase from the Frikom product range only. Frikom's appeal of the fine was rejected.
The Competition Authority recently published the results of its sector analysis of the petroleum derivatives markets in Serbia in 2011. The analysis concerns the production, import, export, storage, trade, wholesale and retail of petroleum and petroleum derivatives, as well as various price trend analyses. The authority concluded that there are signs of stronger price competition than in the previous three-year period.
The Competition Authority recently cleared a second attempt at a takeover of Hellenic Sugar Industry SA by Sunoko doo, subject to structural and behavioural measures. The authority claimed its shift in view was due to a change in market conditions. The decision represents the authority's most detailed attempt to conditionally approve a takeover which raises serious competition concerns.
The Commission for Protection of Competition recently issued an opinion on public procurement and consortium agreements between competitors in tendering and public procurement procedures. The commission views consortium agreements as restrictive agreements, which therefore must be submitted to the commission for an individual exemption.
The Competition Authority recently fined Frikom AD €3 million for abuse of its dominant position on the Serbian wholesale ice cream market. The authority also requested that Frikom amend the problematic agreements and provide proof that all critical clauses will be replaced with terms compliant with competition law. Given the amount of the fine, it is believed that Frikom will appeal.
The Administrative Court has annulled a Competition Authority decision prohibiting a concentration between Sunoko doo and Hellenic Sugar Industry SA on the grounds that it lacked sufficient reasoning. It is clear from recent developments that the authority will challenge the Administrative Court's decision before the Supreme Court by lodging an extraordinary legal remedy.
The Competition Authority has failed to approve the proposed concentration between Sunoko and Hellenic Sugar. This decision is particularly important as the proposals demonstrated the depth of investigations conducted by the commission, and provided an insight into the rationale on which the commission based its decision to prohibit the transaction.
A review of the Commission for Protection of Competition's recent practice reveals that in the last quarter of 2011 and early 2012 the commission extensively used its new power to impose monetary fines. This power was granted to the commission in November 2009 and was first used at the beginning of 2011. The total amount of the fines imposed so far by the commission is approximately €33 million.
The Competition Commission has imposed, for the first time, a penalty for failure to adhere to its procedural rules. The commission requested that Veropoulos doo, a grocery retailer chain, submit information relating to the assessment of the notified acquisition of Delta Maxi by Delhaize. Veropoulos missed the deadline for submitting the information by 53 days, resulting in a fine of €26,500.
The Competition Commission has blocked a price-fixing regime which was being operated by 14 Belgrade taxi associations and prohibited further conduct which could result in distortion of competition. In light of the recent practice of the commission, the parties are expected to be fined up to 10% of their total turnovers, based on the provisions of the new Law on Protection of Competition.
The Republic Agency for Electronic Communications has issued its decision on the identification of markets which are subject to ex ante regulation. The agency's decision lists the markets which have structural, regulatory and other long-term barriers preventing the entry of new competitors, in which it is impossible to develop effective competition without ex ante regulation.
The Commission for Protection of Competition has issued Guidelines for the Detection of Bid Rigging in Public Procurement. The commission identified bid rigging as one of the most serious violations of competition, pointing out that it affects not only competition, but also has a significant impact on the state economy.
The Commission for the Protection of Competition has fined Grand Prom and Idea for concluding and implementing an agreement which stipulated that a 2% rebate should be granted by Grand Prom for retail price maintenance. The commission found that the conclusion of the agreement was initiated by Idea, and that Grand Prom had agreed due, among other things, to its fear of losing a significant customer.
The Administrative Court has confirmed a decision of the Commission for the Protection of Competition in the Danube Foods Group case to fine two milk and dairy product producers – Mlekara ad and Imlek ad (which are both controlled by Danube Foods Group) – 1.92% of their respective turnovers (approximately €3 million).
Before the existing Law on the Protection of Competition entered into force at the end of 2009, Serbian competition law had a serious flaw: the Competition Commission was unable to issue fines directly, but rather had to apply to the courts to impose fines on undertakings that had breached competition rules. Now that the commission has the power to impose fines directly, it has been exercising this power.
In late 2009 a new Competition Act entered into force giving the Commission for the Protection of Competition significantly more power to go after companies that have breached competition rules. Questions were raised as to how the commission would cope with the resultant workload. However, the commission recenty proved its doubters wrong by adopting its first major decision following an investigation into the sunflower oil sector.
Guidelines have been adopted to supplement the Regulation on Leniency in order to set the conditions under which leniency is to be granted and to specify the Competition Commission's leniency procedure. A leniency applicant may either notify the commission of a restrictive agreement anonymously or request exemption from fines which may become payable.
The government has adopted regulations that provide details of block exemptions (for distribution agreements, research and development, and specialization agreements) and individual exemptions (the bylaw regulating the content of the request for individual exemption), setting the requirements under which an agreement is deemed not to have an appreciable effect on competition.