Focus on Competition 2011 - Karanovic & Nikolic

Contents 

Foreword.......................................................................................................................................................4 

Latest Developments 

Leniency and the Policy Behind It...............................................................................................................8 

The New Vertical Regime ..........................................................................................................................18 

Changes in Serbia........................................................................................................................................20 

The SAA and the application of EU competition rules in Serbia...............................................................22 

ECJ Confirms the Commission’s Views on In-house Legal Professional Privilege.....................................30 

New EU Commissioner...............................................................................................................................32 

New Competition Commissioners in the Region .......................................................................................34 

New Macedonian Competition Law...........................................................................................................36 

FOCUS ON COMPETITION 

Publisher: AOD Karanovic & Nikolic 

Resavska 23, Beograd, +381 11 3094 200 

www.karanovic-nikolic.com 

Editors: Patricia Gannon, Rastko Petaković, 

Bojan Vučković, 

Patrick Callinan, Bojana Miljanović 

Design: Designis 

Photography: Istock 

Print: Akademija, Belgrade 

Copyrights: Karanovic & Nikolic, 2010. All rights reserved. 

Circulation: 500 

Inside View 

Regional Overview - Merger Control Similarities between Regional Jurisdictions...................................40 

- Serbia........................................................................................................................................................41 

- Montenegro..............................................................................................................................................44 

- Bosnia and Herzegovina..........................................................................................................................46 

- Macedonia................................................................................................................................................48 

- Croatia......................................................................................................................................................52 

- Slovenia....................................................................................................................................................54 

Private enforcement and what it means for the region.............................................................................56 

Criminal Penalties for the Violation of Competition Rules........................................................................62 

The Cooperation of South-East European Competition Authorities with German, Austrian 

and other ECN Authorities.........................................................................................................................66 

Statistical Overview of the Regional Competition Authorities .................................................................68 

Global Trends 

Information Exchange................................................................................................................................74 

Brussels’ Antitrust Revolution...................................................................................................................78 

Europe and the online economy – a journey down an exciting................................................................80 

Glossary......................................................................................................................................................88 

Dictionary...................................................................................................................................................92 

3

KN Karanovic & Nikolic is delighted to be 

able to present you with the fourth edition of our 

<strong>Focus</strong> on Competition yearbook. Here we have a 

collection of articles and knowledge that we think 

best reflect the happenings in the region itself as 

well as competition law developments from further 

afield that have invariably had an impact on 

our region. 

In our latest edition we have further broadened 

the focus on all of our regional jurisdictions: 

Bosnia and Herzegovina, Macedonia, Montenegro 

and Serbia, including Slovenia and Croatia. With 

the advent of several new competition law acts 

we have seen a significant increase in advisory 

work across the board. Significant provisions allowed 

for under regional competition legislation 

have made the transition from being theoretically 

possible to becoming a practical reality and we examine 

how this has helped to develop competition 

practice in the region. 

We also look at developments in leniency, 

the new vertical regime, and the new competition 

commissioners in both Bosnia-Herzegovina 

and Serbia. We examine developments such as 

private enforcement and the reality of criminal 

penalties for the violation of competition rules. 

With regional countries hoping to become European 

accession candidates, we discuss the direct 

effect that the EU Stabilisation Agreements and 

the Interim Agreements now have on the day to 

day operations of companies operating in the region. 

It is clear that competition law practice is 

gaining ever increasing momentum in the region 

and this will invariably continue over the course 

of the next year. With a decrease in the number 

of merger filings due to increased thresholds, regional 

authorities are now more motivated than 

ever to focus on the more sophisticated aspects of 

competition enforcement. 

Understanding the ever-changing competition 

landscape and anticipating the issues that will 

arise for our clients is the continuing challenge 

that we look forward to in 2011 and beyond. 

Foreword

Latest 

Developments 

6 7

Introduction 

For many decades cartels have been described 

as the most evil form of business behaviour, 

the boogie man of antitrust enforcers 

worldwide. The world’s view on cartels is probably 

best epitomized by the words of Ms. Neelie 

Kroes, former EU Competition Commissioner, 

who refers to them as a “conspiracy against the 

public”. 

Speaking of fines at the press conference in 

the plastic additives cartel case, she said: “I have 

no time for arguments that our fines are too high. 

Tell that to the businesses and consumers who still 

suffer at the hands of cartels.” 

The third quote from Ms. Kroes came as a 

comment to the form, rather than substance, of 

cartels. One part of the quote (underlined), has 

particular resonance: “Our task is made harder because 

cartels are always changing shape - adapting 

like viruses to fight our attempts to kill 

them off. Always building up resistance, always 

trying to outsmart us. Our investigations show 

that cartels try to cover their tracks using encrypted 

e-mail, attributing code names, using fake 

or misleading e-mail accounts, pre-paid mobile 

phones … it is a long list of deceptions.” 

So how difficult is it to kill these deceiving 

ever-changing viruses off? The key word is leniency. 

The leniency principle is closely associated 

with terms like “whistleblower” or “protected witness”. 

These principles have proven useful in busting 

organised crime, drug cartels, and attempts to 

cover up or deceive public investigations and so 

on. The programme is designed to offer “immunity” 

(EU jargon) or “amnesty” (US jargon) from 

fines or significant reductions in fine in return for 

companies reporting anti-competitive conduct 

and cooperating with competition authorities in 

their investigations. 

It is in the nature of cartels to try to be hidden 

under a thick cloak of secrecy involving the 

highest company officials. Let us use Kroes’ words 

one more time – the quote is from the press conference 

held after publishing the decision on the 

power transformers cartel: 

“The cartel was organised through an oral 

‘gentlemen’s agreement’. These self-appointed 

‘gentlemen’ met in swanky hotels throughout 

Asia and Europe, from Singapore to Barcelona, 

Zurich to Tokyo, and Vienna to Lisbon, to carve 

up the European and Japanese markets between 

themselves. In an attempt to cover their tracks, 

the companies were careful to keep the agreement 

oral. They also took the precaution of using code 

words for any references to the agreement or its 

participants in the invitations to the meetings and 

in the minutes of these meetings.” 

If taken out of context, we can imagine hearing 

these words in a movie trailer – perfectly delivered 

in a male voice in deeper registers. Ms. 

Kroes breaks the illusion by continuing: “Siemens 

received immunity for having blown the whistle 

to the Commission on the cartel.” 

Obviously, the rationale and main prerequisite 

for any leniency programme is to provide an incentive, 

a carrot if you will, to those who come 

forward with any evidence of an infringement. 

In turn, competition authorities are able to punish 

other participants with the stick. Competition 

enforcers across the World have reached some 

of their landmark decisions based on this programme. 

The EU perspective 

The fight against hard core cartels which are 

seen as the most harmful threat to the competitive 

environment has proven to be one of the top priorities 

in the European Commission’s agenda. The 

establishment of the leniency policy in 1996 and 

its later revisions in 2002 and 2006 has increased 

the number of successfully prosecuted cartel infringements. 

Over half of the cartel cases, in the 

period between 2005 and 2008, were initiated by 

the leniency applicants. Not only has leniency 

enabled the Commission to achieve positive results, 

but it also doing so with considerable savings 

in resources as it is now able to rely solely on 

the evidence supplied by the “whistleblower” in 

reaching its decisions. Apart from that, leniency 

serves as a deterrent to companies even thinking 

about forming cartels bearing in mind the severe 

fines for competition infringement (according to 

the European Commission’s data, the largest fine 

imposed on a single company engaged in cartel 

infringement is over €896 million; the largest fine 

imposed on all members of a single cartel is over 

€1.3 billion). 

The OECD Competition Committee Report 

(2002) underlines the efficiency and importance 

of leniency in uncovering direct or indirect evidence 

of cartel existence: “In respect to countering 

hardcore cartels, the main challenge is penetrating 

beyond their secret wrapper. To encourage 

a cartel member to confess and involve his plotters 

with first-rank evidence, from ‘inside’, concerning 

Leniency and the Policy Behind It 

8 9

their communications and clandestine meetings, a 

competition agency may promise a reduced fine, a 

reduced sentence or even total amnesty.” The public 

interest in discovering and eradicating covertly 

operated cartels outweighs the public interest in 

punishing all participants involved in the prohibited 

practice. Harmful, socio-economic effects of 

cartels ultimately affect customers. By limiting 

competition cartels inhibit innovation, reduce the 

quality of products and lead to price increases. 

Leniency, therefore, appears to be a win-win 

situation; the first to blow the whistle is out of the 

reach of potentially severe penalties or, if not the 

first one to report, it can benefit from a reduction 

in its fine and the Commission, on the other 

hand, is successfully detecting anti-competitive 

practices. 

Model Leniency Programme 

The concept of leniency did not stop evolving 

with its introduction on the EU-level. In further 

enhancing the discovery and punishment of cartels, 

especially cross-border ones, the European 

Competition Network (ECN) Model Leniency 

Programme was introduced in 2006 and it has 

since been endorsed by all ECN members. It lays 

down general minimum standards with the aim of 

achieving greater harmonisation in various leniency 

rules that exist across the EU. At the date of the 

report, the European Commission and a large majority 

of Member States (25 out of 27 with the exception 

of Malta and Slovenia) operated leniency 

programmes. There were considerable differences 

in these programmes, nevertheless they may apply 

in parallel and an applicant may be required 

to file with more than one Authority. The overall 

success, therefore, depends on the harmonisation 

of some of the key elements of leniency throughout 

the Europe. 

Although not legally binding, today’s Model 

Leniency Programme represents a good example 

of successfully conducted enforcement policy 

coordination among the EU states which has resulted 

in greater legal certainty. 

The US experience 

One of the World’s most prominent and successful 

antitrust authorities, led by Mr. Phillip 

Warren, head of the office and his second in command 

Mr. Niall Lynch, is located in San Francisco. 

The United States Department of Justice, antitrust 

division, and the San Francisco field office in particular, 

has conducted some of the most notorious 

prosecutions against the biggest antitrust conspirators 

ever prosecuted on the US soil, resulting 

in more than US 2.3 billion in fines imposed and 

countless executives sent to jail. Together with 

Washington, DC office, these two offices represent 

the epicentre of the US antitrust battlefield. 

Before the introduction of the US leniency 

programme in 1993, the work of the cartel-busters 

was anything but easy and straightforward. 

Discovering and investigating cartels, burrowing 

inside social circles of company executives with 

the aim of securing enough evidence meant the 

proceedings were slow, intensive efforts had to be 

made in order to get the insider information and 

on many occasions conspiracies remained difficult 

to crack and investigations hit dead ends. The new 

era of the enforcement practice in San Francisco 

office came with the introduction of the US leniency 

programme. 

The newly created opportunity for executives 

to avoid fines and prison sentences played a vital 

role in reshaping the work of antitrust enforcers. 

Now they had a new source of evidence, the companies 

themselves. The results followed, for the 

first time ever, in a huge price-fixing case involving 

the company Archers Daniels Midland. An antitrust 

fine of US 100 million was imposed. Other 

cases, such as one against Akzo Nobel Chemical or 

Bayer, followed the same trend. 

Over the years the leniency programme has 

proven to be an essential weapon in the Authority’s 

arsenal. Many cases nowadays involve leniency 

applicants. “The effort is always to get the 

insider. When someone does come in, life around 

the office is far easier. It allows us to jump-start 

these investigations in ways that in the earlier 

days we were seldom able to” head of the San 

Francisco office says. 

Even today, the involvement of an insider 

ready to witness and furnish evidence is not always 

attainable; it is nevertheless a vital element 

to building up a successful case against antitrust 

villains. 

10 11

Serbia 

Serbia introduced the leniency principle in 

its most rudimentary form even in the old 2005 

Competition Law, granting immunity to all parties 

which notified the authority before any procedure 

was instigated. The new 2009 law however 

brought some additional changes and the new 

2010 regulations and guidelines further clarifies 

the matter and provides more instructions on its 

practical application. 

The Serbian Law on the Protection of Competition 

(“Official Gazette of the Republic of Serbia” 

No. 51/09) (the ‘Law’) contains a general provision 

on leniency under Article 69. Pursuant to 

Article 69, a party to a restrictive agreement, if 

it is the first one to inform the Commission of the 

existence of an anti-competitive practice of which 

it is a member, or provides evidence on the basis 

of which the Commission carries out an inspection 

and finds an infringement under Article 10 

(restrictive agreements provision) of the Law, obtains 

an immunity from any fine. 

Full leniency only applies if the Commission 

did not have any evidence of the existence of a 

certain anti-competitive practice at the moment 

the applicant files for leniency and provides evidence 

or if it did have the relevant knowledge, 

but it lacked sufficient evidence to commence the 

proceedings. 

In the event a party does not satisfy the requirements 

for full leniency, but it does collaborate 

with the Commission during the investigation 

by providing important new evidence that was not 

previously available and that further strengthens 

Full leniency 

In July 2010 Serbian Government enacted the 

Regulation on the Conditions for Immunity from 

Fines which lays down requirements for full leniency. 

For such immunity to apply, the leniency 

applicant will: 

• be the first one reporting to the authority, 

whereas the authority will have had no prior 

knowledge or lacked sufficient evidence of the 

infringement in question; 

• need to furnish all available evidence on the 

agreement or point the authority to the place or 

the person in possession of such evidence; 

• not have forced or coerced other participants 

to conclude or enforce the restrictive agreement; 

• not have been the initiator or the organiser 

of the restrictive agreement; 

• need to immediately cease applying the 

agreement; 

• sign a statement undertaking to completely 

and constantly cooperate with the Commission 

until the resolution on the decision on the fine (so 

called measure for the protection of competition) 

becomes final. 

Reduction in fines 

The reduction, on the other hand, will be 

available to those who do not qualify for the full 

leniency, and where they: 

• did not initiate the anti-competitive agreement; 

• did not force or coerce other participants to 

conclude or enforce the restrictive agreement; 

• actually applied for a reduction in the fine 

during the proceeding; 

agreement save in the circumstances where that 

would jeopardise the procedure; 

• do not destroy information or other evidence 

in relation to the restrictive agreement; 

• respond timely to the Commission’s further 

requests and questions; 

• enable the Commission to question employees 

or former employees; 

• keep as a secret all information contained in 

the application as well as the fact that they are 

cooperating with the Commission; 

• act in good faith towards the Commission’s 

requests during the entire proceeding. 

The reduction in fine will be awarded in the 

following percentages: 

- 30 – 50% for the first applicant who satisfied 

conditions 

- 20 – 30% for the second applicant who satisfied 


- Up to 20% for other applicants who satisfied 


Procedure 

The procedure for applying for leniency is 

laid down in the Guidelines for the application of 

Article 69 (the ‘Guidelines’) enacted recently by 

the Serbian Government. 

A full leniency applicant can contact the Commission 

without revealing its identity i.e. an anonymous 

application is allowed. The Commission will 

then examine all the information and evidence 

supplied by such an applicant and inform them of 

their status, i.e. whether he can apply for immunity 

of just a reduction. Furthermore, Guidelines 

also provide for a so called pre-application coupled 

with a request by an applicant for a determination 

by the Commission of his order or position 

when submitting the application. Within a month 

of filing a pre-application, an applicant is under a 

duty to file a complete application. The date of the 

pre-application will be the relevant date for the 

purpose of filling an application. The application 

has to be made in writing, and only exceptionally, 

upon the submission of a well elaborated and 

documented request, can it be submitted orally. It 

must also be made individually, collective applications 

are not permitted. Only personal delivery to 

the appointed official at the Commission is prescribed 

under the Guidelines. 

The Commission will inform the applicant of 

its decision in writing. Where full leniency is not 

awarded the applicant has the right to the reclassification 

of its application, within 5 working days 

of the receipt of the decision. In other words, his 

request for full leniency can be reclassified as a 

request for a reduction in the fine. 

An Application for a reduction can be made 

any time during the proceeding, up until the Commission 

sends the statement of important facts, 

evidence and other elements of the case (Statement 

of Objections) to the parties. 

The Competition Commission has not yet issued 

any decisions on leniency. 

Regional Overview - Leniency 

the Commission’s case and leads to issuing a decision 

on the violation under Article 10, this may 

result in a reduction in fine. 

Neither full leniency nor reduction in fine 

shall be available to a party that initiated the execution 

of the offending agreement. 

• provide evidence not previously available to 

the Commission which will enable it to end the 

procedure; 

• fully and unconditionally cooperate with 

the Commission during the proceeding 

• immediately cease applying the restrictive 

12 13

Slovenia 

Leniency was introduced into the Slovenian 

legal system with the adoption of the Prevention 

of the Restriction of Competition Act (“Official 

Gazette of the Republic of Slovenia” Nos. 36/08 

and 40/09) (the ‘Law’) in 2008. 

The leniency program, as per Article 76 of the 

Law, creates an opportunity for cartel members to 

benefit from lenient treatment by the Competition 

Protection Office (the ‘Office’), if they cooperate 

with the Office during the proceedings. The 

competition authority can either grant full leniency 

or a reduction in fines. 

The leniency programme in Slovenia, started 

operating on 1 January 2010 with the enactment 

of the Decree on the procedure for granting immunity 

from fines and a reduction of fines in 

cartel cases (“Official Gazette of the republic of 

Slovenia” No. 112/09) (the ‘Decree’). The decree 

contains detailed rules of the procedure for the 

granting of immunity or a reduction in a fine. It 

was introduced with the aim of increasing transparency 

and legal certainty in relation to the handling 

of the leniency applications and it is largely 

based on the Model Leniency Programme of the 

European Competition Network. 

Therefore in order to benefit from these institutes, 

a party must satisfy the conditions laid 

down under Article 76 of the Law and the Decree. 

Full leniency 

Full leniency requires an applicant: 

• to be the first one to provide evidence which 

will, in the Office’s view, enable the Office to carry 

out the investigation or find an infringement; 

• to fully and completely disclose its involvement 

in the alleged cartel; 

• to collaborate with the Office throughout 

the procedure; 

• to immediately cease its involvement in the 

alleged cartel save in the circumstances where 

that would jeopardise the procedure which will be 

decided by the Office; 

• not to be the one who coerced others to join 

the cartel or to remain in it. 

Reduction in fines 

A reduction in fines requires an applicant: 

• to furnish the evidence of its participation 

in the alleged cartel which represents significant 

added value in relation to the evidence already 

obtained by the Office; 

• to collaborate with the Office throughout 

the procedure; 

• to immediately cease its involvement in the 

alleged cartel save in the circumstances where 

that would jeopardise the procedure which will be 

decided by the Office; 

The reduction in fine will be more significant 

depending on the order of applications: 







Procedure 

An application can only be made by an offender, 

which can be either a legal entity or a 

natural person – the one who actually participated 

in the alleged cartel. The application must 

clearly state who it covers and whether it is an application 

for immunity or a reduction in fine. The 

Decree provides the form of the application and 

detailed information on what should be submitted 

in order to complete the application. Various 

methods of application are considered acceptable. 

An application may be submitted by mail, by direct 

delivery, in writing or orally, in person at the 

Office, by fax or during the inspection itself. In 

the case of applying for immunity, a hypothetical 

application; an application for a marker; as well as 

a summary application are possible. 

The Office will deal with the applications in 

the order received and it will inform the applicant 

in writing of its decision. The immunity or a 

reduction in fine is granted in the minor offence 

procedure by issuing a minor offence decision. 

Bosnia and Herzegovina 

The Competition Law (“Official Gazette of 

Bosnia and Herzegovina” Nos. 48/05, 76/07 and 

80/09), Article 54, contains a general leniency 

provision. 

Immunity or a mere reduction in fine is available 

to an undertaking that voluntarily submits 

evidence of competition infringement to the authority 

and at the same time ceases its involvement 

in the prohibited action without coercing 

others to take part in the anti-competitive behaviour. 

The law further states that the evidence has 

to be submitted at the time when the Competition 

Council (the ‘Council’) did not have sufficient 

information in order to initiate proceeding ex 

officio. Continuous cooperation with the Council 

throughout the procedure is also proscribed under 

this general provision. 

More detailed rules on leniency principles and 

procedure are contained in the Decision on the 

leniency policy enacted by the Council in March 

2010. 

Full leniency 

The Council may award full leniency to an 

applicant, if he was the first one to voluntarily 

furnish new evidence of the anti-competitive behaviour 

in which he participated, to the Council, 

which will enable the Council to find an infringement. 

Full leniency will only be granted if the 

Council did not have enough evidence to commence 

the said proceeding at the time of the leniency 

application. 

Apart from the above conditions, an applicant 

must also: 

• cease his involvement in the prohibited 

agreement immediately; 

• keep his application as a secret from the 

other participants; 

• cooperate with the Council throughout the 

proceeding; and 

• he must not coerce others, in any way, to 

take part in the prohibited agreement. 

Reduction in fine 

In order to benefit from a reduction in the fine 

an applicant must: 

• furnish evidence that will have some added 

value to the evidence already in the Council’s possession; 

• cease his involvement in the prohibited behaviour 

immediately; 

As in Serbia and Slovenia, the reduction is 

more significant depending on the timing: 







Procedure 

An application can be submitted to the Council 

orally, in writing or electronically. It has to be 

made individually, however. Collective applications 

are prohibited. 

Bosnian law provides for a kind of a marker 

system. The initial contact with the Council can 

be made anonymously by an applicant who will 

submit some evidence to the Council at that point. 

The Council will then asses the application and inform 

the applicant of its status. Once the Council 

determines that the applicant is eligible for full 

leniency, it will issue a decision on conditional 

leniency, i.e. leniency on the condition that the 

applicant provides further evidence of the breach 

and continues to cooperate with the Council. If the 

Council does not issue a decision on conditional 

leniency, an applicant may withdraw all of the 

evidence submitted or ask for a reduction in fine. 

In case the applicant decides to withdraw the evidence, 

the Office cannot use that evidence at all to 

build up a case. It can however, try and get to the 

said evidence through its own regular channels. 

14 

15

Croatia 

Leniency has just become a part of Croatian 

competition legal framework. The new Competition 

Act 2009 (“Official Gazette of the Republic 

of Croatia” No. 79/09) (the ‘Act’) came into force 

on 1 October 2010. It brought many changes into 

Croatian competition law amongst which is the introduction 

of a leniency policy. 

Full leniency 

Article 65 of the Act states that the Competition 

Agency (the ‘Agency’) may grant full leniency 

to the first cartel member that comes forward 

and informs the Agency of the existence of 

a cartel. They must then provide evidence which 

will enable the Agency to commence a proceeding 

in connection with the alleged anti-competitive 

practice. Alternatively, full leniency will also be 

available to the first cartel member who submits 

information and evidence which will enable the 

Agency to find the infringement of the Act in previously 

initiated proceedings where the Agency 

had no sufficient evidence to adopt a decision, i.e. 

to discover the existence of a cartel. The immunity 

however, will not be available to the initiator of 

the cartel in any case. 

Reduction in fine 

A reduction in fine is available to those who 

provide the Agency with evidence that represents 

significant added value with respect to evidence 

already in the Agency’s possession and which 

substantially contributes to the closure of the proceeding 

concerned. 

Procedure 

There are currently no specific rules on the leniency 

application procedure. It is up to the Government 

of the Republic of Croatia to regulate the 

procedure in the next couple of months through 

the adoption of necessary by-laws. 

Macedonia 

The new Law on Protection of Competition 

was adopted by the Macedonian Parliament in 

November 2010. In many respects, it represents 

a new modern law drafted in accordance with the 

standards of the European Union. Amongst other 

changes it introduces a leniency policy into the 

Macedonian legal system. The new law is expected 

to come into effect soon after its publication 

in the Macedonian Official Gazette which is expected 

any day now and will probably be done by 

the date of the publication of this book. For that 

reason we will outline below the leniency rules 

contained under the new Act. 

Similarly to Croatia, full leniency is available 

to the first cartel member who produces evidence 

to the Commission for the Protection of Competition 

(the ‘Commission’) of the existence of a cartel 

which will enable the Agency to commence the 

proceeding in connection with the alleged anticompetitive 

practice or if the Commission has already 

initiated the proceeding such evidence will 

enable it to end the proceeding. 

In the case that an applicant is not eligible 

for full leniency, his fines may be reduced if he 

furnished additional evidence to the Commission 

which substantially contribute to the closure of 

the proceeding concerned. 

The following conditions must also be fulfilled 

in the case of both, full leniency and a reduction 

in fine: 

• the applicant must cease his involvement 

immediately; 

• he must cooperate with the commission 

throughout the proceeding; 

• keep his application as a secret from other 

cartel members; 

• keep his application as a secret from all others 

except from the competition authorities outside 

of Macedonia; 

• the applicant must not destroy, conceal or 

forge the evidence relevant for the Commission’s 

decision in the instant case. 

The institute of full leniency or a reduction 

in fine will not be available to those who coerced 

others to join or to those who remain in the prohibited 

practice. 

Further regulation of the leniency procedure 

is expected to follow the adoption of the new Act. 

Montenegro 

There is currently no leniency programme 

under Montenegrin Competition law (“Official 

Gazette of Montenegro” Nos. 69/05 and 37/07). 

16 17

A decade on from its last review of the vertical 

block exemption regulations, the European Commission 

has revisited this area of law. As a result, 

a new Block Exemption Regulation and Guidelines 

on vertical agreements have been published. Following 

a public consultation, the new Block Exemption 

came into force on 1 June 2010 and it 

will represent a valid legal framework for the next 

12 years. 

For those who satisfied the conditions of the 

old Block Exemption Regulation, there is a one 

year transitional period to revert to their agreements 

and to comply with the requirements of the 

New Regulation. 

Although not fundamentally modified in 

comparison with the old rules, the new regime 

reflects some important changes that have occurred 

in the last 10 years and have an impact 

on vertical agreements. Most importantly, the era 

of internet selling in which we are currently living 

in required more regulation and the market 

power of large distributors and retailers has considerably 

increased. Additionally, a new light has 

been shed on resale price maintenance (RPM) in 

accordance with the new case law developments 

and the change in the general attitude towards 

RPM. 

On-line sales 

In line with the development of modern technology, 

internet selling became every-day reality 

for many retailers and is consequently, posing 

many challenges to the traditional business models, 

such as “bricks and mortar” stores. 

therefore being undercut by e-competitors with 

lower operational costs. Manufacturers of luxury 

goods, on the other hand, are often reluctant to 

sell their products on-line in the fear of harming 

their brands’ image. In order to prevent counterfeiting 

or protect sales in their traditional outlets, 

these manufacturers often engage in various anticompetitive 

practices that limit online sales, such 

as retail price maintenance. 

The battle between luxury brands such as Chanel 

and online auction companies such as eBay resulted 

in the new rules on internet selling coming 

more down on the side of the internet sellers. The 

Commission has clearly stated that the restrictions 

of the use of the Internet by distributors are, by 

and large, viewed as hardcore restrictions depriving 

its initiator of the protection of the vertical 

block exemption. Hence, practices such as “dual 

pricing” i.e. requiring distributor to pay a higher 

purchase price for units sold on-line or limiting the 

proportion of overall Internet sales as well as any 

obligations on distributors to automatically divert 

customers if they are located outside their territory 

will be considered hardcore restriction according to 

the new Guidelines. Suppliers can still, however, set 

up exclusive and selective distribution networks, 

and are completely free to choose who to include 

in their network as well as to restrict active selling 

among their network members to exclusively allocated 

territories or customer groups. They can also 

demand certain quality standards for the use of an 

Internet site to sell their goods, as this particular 

restraint is ultimately beneficial to consumers, but 

they cannot prevent a distributor from setting up a 

website and selling products online. 

dance with the Commission’s economic-oriented 

approach. 

Buyer’s market share threshold 

As opposed to the Old Block Exemption which 

had only focused on a supplier’s market share, 

the new rules have imposed a new market share 

threshold that companies must meet in order to 

benefit from the block exemption. Namely, both 

the supplier’s and the buyer’s market shares are 

now relevant. Hence, for immunity to apply, the 

market share of the supplier on the market where 

it sells the goods to the buyer, and the market 

share of the buyer on the market where it buys the 

goods from the seller, must each be 30% or less. 

The initial draft of the Regulation was somewhat 

different; it took into consideration the selling 

market of the buyer, the market where he sold the 

goods not where it bought them. This was heavily 

criticised due to the fact that it is very difficult to 

determine such a market in small local markets. As 

a result, it was changed to the purchasing market 

which should be easier to evaluate. 

New thresholds reflect the reality in which 

large buyers with significant market power can 

abuse that power in order to establish vertical restraints 

which would go to the ultimate detriment 

of consumers. In its press release the Commission 

has stated that the introduction of a buyer’s 

market share threshold is not only beneficial to 

consumers but also to small and medium sized enterprises, 

as they are competitors of the powerful 

buyer, usually unable to compete with them 

the lack of accurate information will lead to a lack 

of certainty as to whether the block exemption 

applies in a particular case or not. 

Resale Price Maintenance 

The European Commission has finally acknowledged 

that there are some pro-competitive, 

rather benign aspects of resale price maintenance 

(RPM) vertical restraint. A more flexible approach 

to RPM was partially inspired by the US case law 

development in Leegin Creative Leather Products 1 

case in 2007, where the US Supreme Court applied 

a more permissible rule of reason instead of 

a per se rule to price fixing, changing an almost 

100-year-old US antitrust law. The new European 

Regulation is not as permissive as the US approach 

is. It still discourages RPM; nevertheless the Commission 

has begun to acknowledge that there are 

pro-competitive effects of RPM. The Guidelines 

accordingly state “where a manufacturer introduces 

a new product, RPM may be helpful during 

the introductory period of expanding demand to 

induce distributors to better take into account the 

manufacturer’s interest to promote the product.” 

The Guidelines further give examples of how RPM 

may be beneficial in that particular instance stating 

that this will ultimately benefit consumers. 

The New Vertical Regime 

The profit margins for internet retailers are 

much bigger than profits of traditional stores 

which face high overheads. As a result of having 

to employ more staff or having to lease appropriate 

premises, traditional stores have to charge 

higher prices in order to achieve profits and are 

The new Guidelines provide a detailed list of 

restrictions that will be regarded as hard-core by 

the Commission. The idea behind solutions adopted 

in the new provisions was to strike a balance 

between conflicting interests and to provide 

an adequate degree of legal certainty in accor- 

on equal footing. Critics, however, say that the 

new rule is short-sighted and not the best solution. 

They point out that suppliers will now face 

a difficult task in assessing their resellers’ market 

power on their buying markets. They will rarely 

if ever have the necessary information. Arguably, 

1 

Leegin Creative Leather Products, Inc. v. PSKS, Inc. 551 U.S. 

877 (2007) 

18 19

Block and individual exemptions 

In March 2010 Serbia adopted three block 

exemption regulations that further strengthen its 

competition legal environment. The three regulations 

concern the following types of agreements: 

• vertical agreements (“Official Gazette of the 

Republic of Serbia” No. 11/2010), 

• horizontal specialisation agreements (“Official 

Gazette of the Republic of Serbia” No. 

11/2010) and 

• horizontal research and development agreements 

(“Official Gazette of the Republic of Serbia” 

No. 11/2010). 

All three regulations have been drafted in 

accordance with the corresponding EU regulations 

bringing Serbia closer to the EU competition 

framework. These types of agreements have 

therefore been afforded an automatic exemption 

if they satisfy the conditions proscribed under the 

regulations. 

Although the regulations broadly follow the 

structure and content of its EU counterparts, 

there are some significant differences as well as 

arguably, some oversights made by the Serbian 

Legislators. 

The Vertical Block Exemption Regulation, for 

example, provides for stricter market thresholds 

than its European counterpart. Both buyer’s and 

seller’s market share must not exceed 25% each 

(instead of 30%) on their relevant markets for the 

exemption to apply. The most important hardcore 

restraints provided under the regulation are resale 

price maintenance, absolute territorial ban 

and non-compete clauses exceeding five years. 

The Research and Development Regulation 

is almost exactly the same as the EC Regulation 

2659/00. However, in contrast to the Regulation 

2659/00, the Serbian Regulation does not provide 

for the possibility of withdrawal of the benefits 

granted under it nor is such a possibility expressly 

regulated under the Serbian law on the Protection 

of Competition. Arguably, this may lead to inconsistencies 

in future rulings by the Commission. 

Furthermore, the Specialisation Regulation, 

drafted on the basis of the EC Regulation 2658/00, 

does not define some of the key terms used under 

it, such as the “relevant market”, the “executive 

supply obligation” and the “executive purchase 

obligation” and it does not provide for the possibility 

of the withdrawal of benefits granted under 

it as well. 

With regard to agreements that do not satisfy 

the conditions of the block exemptions, an 

individual exemption is available to them. They 

have to apply for it, however, and meet the following 

strict conditions (essentially same as in 

the EU): 

- the agreement improves the production or 

distribution of goods or promotes technical or 

economic progress, facilitates technological and 

economic advances, 

- the consumers are afforded a fair share of 

the resulting benefit, 

- the agreement does not impose on the undertakings 

concerned restrictions which are not 

indispensable to the attainment of these objectives 

and 

- the agreement does not afford such undertakings 

the possibility of eliminating competition 

The Government has brought more clarity into 

the procedure for obtaining an individual exemption 

with the adoption of the Regulation on Content 

of Individual Exemption Request (“Official 

Gazette of the Republic of Serbia” No. 51/09) laying 

out the data which a request for an individual 

exemption should contain. 

Criteria on fines 

The Competition Commission can impose a 

fine for the breach of competition, as prescribed 

under the Law on the Protection of Competition 

(“Official Gazette of the Republic of Serbia” No. 

51/09), Article 68, in the amount of up to 10% of 

a breaching party’s total annual turnover in the 

previous fiscal year. 

In July 2010, the Serbian Government provided 

further guidelines on fines by enacting the Regulation 

on criteria for determining the amount of fine 

to be paid, the method and terms of its payment 

and the conditions for imposing a fine (“Official 

Gazette of the Republic of Serbia” No. 50/2010) 

(the ‘Regulation’). When determining the amount 

of the fine for an established infringement, the authority 

shall consider the following: 

• the intent to infringe competition; 

• the weight, effect and duration of the infringement; 

• the return of the market participants; 

• inciting other market participants to commit 

acts of infringement; 

• how long it took to cease the infringement; 

• what measures are taken for remedying 

consequences arising out of the infringement; and 

The competition authority will from now on 

be required to set the due date for the payment of 

fines in a prohibition decision. This deadline cannot 

be shorter than three months or longer than 

one year. The exact deadline will be based on an 

examination of financial strength of the party. Exceptionally, 

and upon a well elaborated and documented 

request, duly submitted within 15 days 

from the delivery of the prohibition decision, the 

competition authority may allow payment to be 

made in instalments. 

Changes in Serbia 

The Serbian Vertical Block Exemption Regulation 

was drafted based on the EC Regulation 2790/199 

thus it does not reflect some of the newest developments 

in relation to the new EU rules on vertical 

restraints enacted through the EC Regulation 

330/2010. 

on the relevant market or on a substantial part of 

the relevant market. 

• cooperation between the parties in the process 

of establishing the infringement. 

In addition, a number of mitigating circumstances 

in relation to the criteria have been provided 

for. 

20 21


Although the Law on Contracts and Torts and 

the Antimonopoly Law (enacted 1978 and 1996, 

respectively) first heralded the introduction of 

provisions resembling competition regulation in 

Serbia, the enactment of the Law on the Protection 

of Competition in 2005 was the first piece of 

legislation that really announced that competition 

regulation had arrived in Serbia. 

The 2005 Act aimed at regulating competition 

protection in the market, ensuring fair trading between 

market participants and contribution to the 

economic prosperity of Serbian society, especially 

consumers, by increasing economic efficiency. 

It was drafted along similar lines as the existing 

European Union competition laws. Since then the 

2009 Competition Act has come into force. This 

introduced new thresholds for mergers, extended 

notification deadlines and empowered the Serbian 

Commission for the Protection of Competition 

to order the divestment of mergers. It also 

introduced block exemptions, a de minimis rule for 

restrictive agreements, a leniency regime and has 

significantly broadened the enforcement powers 

of the Serbian Commission. The 2009 Competition 

Act essentially further modernised the Serbian 

competition law regime bringing it increasingly in 

line with that of the existing EU model. 

 

The Stabilisation and 

Association Agreement and the 

Interim Agreement on Trade and 

Trade-Related Matters 

A Stabilisation and Association Agreement 

(SAA) represents a significant contractual relationship 

between the EU and each of the Western 

Balkans countries that are seeking full EU membership. 

It is an agreement which provides, (much 

like the Europe Agreements did for the candidate 

countries in Central and Eastern Europe), the formal 

mechanisms and agreed benchmarks which 

allow the EU to work alongside each aspiring 

member in order to bring them as close as possible 

to the standards that are required for ultimate 

membership to the EU. 

Whilst the Europe Agreements (that were in 

place for the earlier wave of aspiring EU members, 

who have now become full members) granted 

their signatories the status of EU candidates, the 

Balkan model SAA‘s grant the status of ‘potential 

candidate’ for EU membership. 

Serbia and the EU entered into the SAA 

and the Interim Agreement on Trade and Trade- 

Related Matters on 29 April 2008. . It should 

be noted here that the idea behind the Interim 

Agreement is that it attempts to provide for the 

interim implementation of the provisions of the 

SAA governing trade and trade matters, prior to 

the SAA coming into force.. The Serbian National 

Parliament ratified both agreements during 2008 

and since the beginning of February 2009, Serbia 

has been unilaterally implementing the Interim 

Agreement. The EU had previously been 

unable to apply the Interim Agreement, due to 

objections from the Netherlands which found 

that Serbia did not achieve full cooperation with 

the International Criminal Tribunal in the Hague. 

However, in December 2009, the EU decided to 

unfreeze the Interim Trade Agreement with Serbia. 

The Interim Agreement between the EU and 

Serbia officially came into force in February 2010. 

Accordingly the terms of the Interim Trade Agreement 

have in theory at least, been applied as of 

this date. 

The SAA’s require the signature and ratification 

not only by the European Community, but 

also from the individual Member States too. The 

SAA is currently being submitted to the EU member 

State parliaments for ratification and this is 

expected to occur around the end of 2010. Serbia 

formally submitted its EU membership application 

in December 2009 but its bid has not yet been approved. 

Candidate status is expected to be granted 

to Serbia in late 2011. 

 

What effect does the Stabilisation 

and Association Agreement have on 

Serbia’s Competition Law Regime? 23 

Article 72 of the SAA provides for the harmonisation 

of domestic legislation with that of 

the EU and emphasises the need for its effective 

implementation and enforcement. The approximation 

procedure for this agreement started on 

the date that the agreement was signed, even 

though the SAA is not yet in force, and it initially 

emphasises a focus on fundamental elements of 

the internal market, acquis communitaire, freedom 

and security as well as other trade related areas. 

In relation to the enforcement of competition 

law, Article 73 contains an important provision 

which allows for EU competition rules to be 

applied by the competition commission in Serbia 

with a quasi-direct effect in cases relating to restrictive 

agreements, the abuse of a dominant position, 

and state aid. Article 73(1) states that: 

“The following are incompatible with the proper 

functioning of this [the SAA] Agreement, insofar 

as they may affect trade between the Community 

and Serbia: 

I. all Agreements between undertakings, decisions 

by associations of undertakings and concerted 

practices between undertakings which have as 

their object or effect the prevention, restriction or 

distortion of competition; 

II. abuse by one or more undertakings of a dominant 

position in the territories of the Community or 

Serbia as a whole or in a substantial part thereof; 

III. any State aid which distorts or threatens to 

distort competition by favouring certain 

undertakings or certain products.” 

It then continues by stating that: 

“Any practices contrary to this Article shall be assessed 

on the basis of criteria arising from the application 

of the competition rules applicable in the 

Community, in particular from Articles 81, 82, 86 

and 87 3 of the EC Treaty and interpretative instruments 

adopted by the Community institutions.” 

The SAA 2 and the application 

of EU competition rules in Serbia 

2 

3 

1 

1 

2 

The European Union’s policy towards the countries of the 

Western Balkans takes the form of the Stabilisation and Association 

Process which was launched at the Zagreb Summit in 

November 2000. The countries concerned are: Albania, Bosnia- 

Herzegovina, Croatia, the Republic of Macedonia, Montenegro 

and Serbia, including Kosovo as defined by resolution 1244 of 

the UN Security Council. The purpose of the Stabilisation and 

Association Process is to establish special relations between the 

countries concerned and the EU in exchange for reforms with a 

view to accession, which will involve aligning their legislation 

more closely with that of the Community. These countries are 

recognised as potential candidates for EU membership. 

3 

On 1 December 2009, the Treaty of Lisbon entered into force. 

This amends, but does not replace, both the Treaty establishing 

the European Community (EC Treaty or Treaty of Rome) and 

the Treaty on European Union (TEU) (Maastricht Treaty). It also 

restructures the Treaties, with the result that the TEU essentially 

sets out the objectives and principles of the EU and provides for 

the Common Foreign and Security Policy, and the EC Treaty (renamed 

the „Treaty on the Functioning of the European Union” 

(TFEU)) provides the organisational and functional details, as 

well as most of the substantive provisions of EU primary law. 

Most of these substantive provisions remain unchanged. However, 

the numbering of the relevant Treaty Articles has changed, 

for example Article 81 of the EC Treaty has become Article 101 

of the TFEU and Article 82 of the EC Treaty has become Article 

102 of the TFEU. 

22 23

This essentially means that any practices that 

may affect trade between the Community and 

Serbia that are contrary to this Article 73 are to 

be assessed on the basis of criteria arising from 

the application of the competition rules applicable 

in the EU. However, in every other instance, the 

domestic Serbian competition legislation is applicable 

in its entirety. 

With regard to the present applicability, it is 

important to stress that the SAA is not yet in force 

as it is awaiting the ratification from all of the 27 

existing Member States. However despite this, as 

the Interim Trade Agreement is in force (the terms 

of which contain identical competition provisions 

as are in the SAA document), these rules are currently 

applicable and have been in force in Serbia 

since February 2010. Accordingly, Serbian companies 

need to be aware of not only the Serbian 

completion rules that apply in a domestic sense, 

but also the EU competition laws which, as described 

can be applicable in certain instances that 

may affect trade between the EU and Serbia where 

Serbian competition law is different to EU rules. 

Do any other provisions 

under Serbian law provide for the 

supremacy of EU competition laws? 

The Competition Act of 2009 makes no reference 

to the supremacy of EU completion law, 

competition provisions under the SAA or under 

the Interim Trade Agreement. Accordingly, the 

sole explicit source of EU competition law supremacy 

in cases that may affect trade between 

the EU and Serbia is the Interim Trade Agreement 

itself. However, if we take a look at the situation 

in neighbouring Macedonia or Croatia, this is not 

the case. Article 74 of the 2009 Croatian Competition 

Act which came into force this October 

states that: 

“This Act shall in accordance with Article 70 of 

the Stabilization and Association Agreement between 

the Republic of Croatia and the European 

Communities and their Member States (Official Gazette 

- International agreements, No 14/01), particularly 

in the case of legal voids and uncertainties 

relating to the interpretation of competition rules, 

accordingly apply the criteria arising from the application 

of the competition rules applicable in the 

European Community”. 

Likewise Article 3 of the Macedonian Competition 

Act of 2005 states that: 

“The criteria arising from the proper application 

of the competition rules in the European 

Communities shall be accordingly applied to the 

assessment of the forms of prevention, restriction 

or distortion of competition, that may affect the 

trading between the Republic of Macedonia and 

the European Communities, in accordance with 

Article 69 of the Stabilization and Association 

Agreement concluded between the Republic of 

Macedonia and the European Communities and 

their member states.” 

Both Macedonia and Croatia have had their 

respective SAA’s fully implemented for some time 

now, and accordingly, its inclusion in their respective 

competition acts merely a reflection of their 

consolidated status as candidate countries. In any 

event, the fact that the Serbian competition legislation 

makes no reference to the terms of Article 

73 of its SAA should not undermine its effectiveness. 

The Serbian Interim Agreement is further 

bolstered by the fact that Article 16 of the Serbian 

Constitution states that: 

“The foreign policy of the Republic of Serbia shall 

be based on generally accepted principles and 

rules of international law. Generally accepted rules 

of international law and ratified international treaties 

shall be an integral part of the legal system in 

the Republic of Serbia and applied directly. Ratified 

international treaties must be in accordance 

with the Constitution”. 

Both Macedonia and Croatia have similar provisions 

in their constitutions. The Interim Trade 

Agreement invariably falls within this definition 

and to date and its applicability has not been 

questioned in the constitutional courts. 

The interpretation of domestic 

Serbian competition provisions 

in light of EU competition law 

Interestingly, in Croatia the Constitutional 

Court of the Republic of Croatia clarified in 2008 4 

that the prior incorporation of EU competition 

rules into Croatia’s domestic legal rules was not 

necessary stating that the acquis communitaire is 

4 

U-III-1410/2007, 13.02.2008, Official Gazette - Croatia (Narodne 

novine) 25/2008 

not applicable as a primary source of law; rather, 

it is seen as an auxiliary means of legal interpretation. 

Accordingly, it has a non-binding but persuasive 

influence when it comes to interpreting existing 

Croatia competition law provisions in relation 

to Article 70 of Croatia’s SAA. Of course, the need 

for Croatia to align its domestic competition law 

in line with that of the EU aquis communitaire is 

still a pressing requirement for membership and 

no such persuasive influence could been deemed 

to replace such a requirement. 

In practice, the Croatian Competition Agency 

generally applies the EU competition rule interpretations 

in their completeness (this applies in domestic 

cases also, i.e. non cross border matters), especially 

in cases where a gap exists in the domestic 

legislation or where a decision derived from case 

law could be useful in interpreting the aim of the 

domestic competition rules applied in a given case. 

This too would appear to be the current position in 

Serbia, where, in practice at least, the broader legal 

community and the competition commission apply 

the methodology and wording of the EU competition 

rules when interpreting their own domestic 

competition provisions. Accordingly, it is expected 

that the application of Serbia’s competition law 

requirements under the Interim Agreement with 

the EU will continue in this vein albeit in a more 

formally structured manner. 

24 25

Simplified practical examples of the 

Interim Trade Agreement’s effect on 

Serbian based companies and their 

operations 

Scenario 1 

SerbCo produce and sell televisions for the 

Serbian market and in the EU market. SerbCo 

sell televisions to a supplier called LocalCo that is 

based in both Nis and in Novi Sad. If SerbCo is to 

engage in a restrictive agreement, or abuse their 

dominant position 5 in the Serbian market, then 

the applicable law in this instance will be the domestic 

Serbian Competition Law. This is because 

SerbCo’s activities do not affect trade between the 

EU and Serbia. 

Scenario 2 

SerbCo are selling televisions to a supplier 

called EuroCo that is based in both Brussels and 

Vienna. If SerbCo is to engage in a restrictive 

agreement, or abuse their dominant position in 

its dealings with EuroCo, due to the fact that the 

trade undertaken by SerbCo will affect trade between 

the EU and Serbia will be subject to the full 

force and application of EU competition law, regardless 

of the fact that Serbia is not yet a member 

of the EU. 

5 

Or breach in particular any of Articles 81, 82, 86 and 87 of the 

EC Treaty and interpretative instruments adopted by the Community 

institutions. 

Scenario 3 

SerbCo enter into an agreement with HungaryCo, 

a company based in Budapest, whereby 

both companies agree not to sell televisions in 

each other’s market for 5 years. These two companies 

therefore are potentially participating in 

what amounts to a single, continuous infringement 

of Article 101 which has been agreed for a 

period of 5 years 6 . Both companies already have 

extremely strong positions in their respective national 

‘Television Sales’ markets and therefore, 

it is arguable that this agreement will deny their 

customers in Serbia and Hungary the full benefits 

of increased competition. 

Prior to February 2010 and the Interim Trade 

Agreement’s applicability, it is arguable as to 

whether or not there would have been an infringement. 

One could argue that neither authority 

would have had the competence to take the 

two companies to task. I.e. the Serbian competition 

authorities would have had competence in 

their own market, whilst the Hungarian competition 

authorities would only have competence in 

their market. Therefore the agreement not to sell 

in the respective companies markets would have 

most likely gone unhindered due to the fact that it 

wasn’t an agreement that fell within the jurisdiction 

of the authorities in either market. However, 

Article 2 of the 2009 Act states that: 

“Provisions of this Law shall be applied to 

practices and acts performed in the territory of 

the Republic of Serbia and/or practices and acts 

performed outside its territory which practices and 

acts that have an impact or may have an impact 

on competition in the territory of the Republic of 

Serbia’’ 

6 

This scenario is not unlike the case where the European Commission 

imposed fines totalling €1 106 000 000 on E.ON AG and 

its subsidiary E.ON Ruhrgas AG (of Germany) and on GDF Suez 

SA (of France) for market sharing in breach of EC Treaty rules on 

cartels and restrictive business practices (Article 81). E.ON/E. 

ON Ruhrgas and GDF Suez were fined €553 000 000 each. Ruhrgas 

AG (now E.ON Ruhrgas, part of the E.ON group) and Gaz 

de France (now part of GDF Suez) agreed in 1975, when they 

decided to jointly build the MEGAL pipeline across Germany 

to import Russian gas into Germany and France, not to sell gas 

transported over this pipeline in each other’s home markets. 

They maintained the market-sharing agreement after European 

gas markets were liberalised, and only abandoned it definitely 

in 2005. However, in this instance, it is clear that two member 

States were involved, but due to the nature of the agreement, 

the Commission had to step in to investigate the legitimacy of 

the agreement. 

Accordingly, one could counter argue that, 

HungaryCo is a potential competitor in Serbia in 

that it would have entered the Serbian market had 

there been no agreement with SerbCo. Employing 

this logic; the Serbian authorities could then argue 

that has an impact or may have had an impact in 

Serbia and that therefore the Serbian competition 

regime is applicable to both companies. 

However, now that the Interim Trade Agreement 

between Serbian and the EU is in force, such 

arguments (at least when dealing with Serbian-EU 

matters) are no longer relevant in a practical sense 

and would appear to have been consigned to the 

annals of academia. It is clear that this market 

sharing arrangement is likely to hinder trade between 

the EU and Serbia as it provides less choice 

to customers in the respective markets. Therefore, 

the competition authorities in either Serbia or Hungary, 

may take the companies to task based on their 

market sharing agreement (under the Interim Trade 

Agreement) which helped them to maintain strong 

positions in the Serbian and Hungarian television 

markets and which deliberately denied consumers 

of both countries the benefits of more price competition 

and a better choice of supplier. The new 

provisions clarify the cross border anomaly that 

previously existed and further promote the continued 

cooperation between the EU and the countries 

that are aspiring to one day become members. 

Food for thought? 

The above scenarios shed some light (albeit in 

a simplified manner) on the type of issues that are 

likely to crop up in the future for companies and 

businesses Serbia that have cross border relationships 

with companies in the EU. Any company that 

engaged in questionable cross-border activities 

that may have been subject to competition regulation 

prior to February 2010, are now far more 

susceptible to regulation due to the Interim Trade 

Agreement and the removal of the ambiguity surrounding 

questionable practices involving Serbian 

and EU companies. As well as being answerable to 

the Serbian Commission, a Serbian company can 

now be held accountable, by any one of the 27 

Member State Commissions depending on their 

activities, as well as the European Commission itself. 

In addition, such a Serbian company can be 

subject to the full body of EU competition law and 

practice and not just the body of domestic competition 

legislation. 

26 

27

The European Commission’s Report 

on Serbia’s Progress. 

Since March 2002, the European Commission 

has reported regularly to both the Council of Europe 

and the European Parliament on the progress made 

by the countries in the Western Balkans region. On 

the 9 November 2010 it released its latest report. 

The most politically sensitive part of the 

progress report highlights improvements in Serbia’s 

relations with the neighbouring countries in 

the region. The European Commission praises Serbia’s 

steps towards reconciliation with neighbouring 

countries Croatia and Bosnia and Herzegovina. 

It also underlines that cooperation with the war 

crimes tribunal in The Hague is imperative and a 

key priority of the European partnership; and that 

the development of a more positive relationship 

with Pristina is necessary. 

However much of remainder of the report is 

far less positive and it contains significant criticism 

of Serbia’s lack of progress with regard to reform. 

In the judicial sector, the report notes that judicial 

reform has continued but there were serious 

shortcomings and non-transparency surrounding 

the process involving the reappointment procedure 

of both judges and prosecutors. In many 

instances the appointments were conducted without 

interviews or the application of merit-based 

criteria. The report continues by stating that the 

independence of the judiciary could well be open 

to political influence. 

The report also portrays a market economy 

that is constantly hampered by bureaucracy, red 

tape and riddled with complex legislation that is 

not conducive to a pro-business environment. 

Weak corporate governance and deficiencies in 

competition were also highlighted as being specific 

barriers to business. 

It notes that some progress was observed in 

adopting new legislation in line with the acquis 

communitaire, but that the preparation and implementation 

of laws is sometimes slow and uneven; 

that legal enforcement is weak due to technical 

and personnel shortcomings in the courts and administrative 

bodies; and that overall, weaknesses 

in the rule of law and prevalent corruption continued 

to limit legal predictability and therefore 

undermined trust in the legal system amongst 

economic operators, in particular with regard to 

the effective enforcement of property rights. 

Conclusion 

It is advisable that Serbian companies or multinationals 

with operations in Serbia maintain 

strict adherence to the domestic competition position 

whilst also ensuring that their behaviour is in 

adherence with EU competition laws too. In many 

instances this will require a thorough review of 

existing agreements between undertakings and 

previously ‘acceptable’ practices, now that the bar 

has been raised. 

28 29

Earlier this year, Akzo Nobel NV, the world’s 

biggest maker of paints, lost an appeal over its 

lawyer-client privilege in a case that could have 

curtailed the investigative powers of the European 

Commission. Attempts to extend legal professional 

privilege to internal company communications 

with in-house lawyers in EU competition cases 

failed, following a ruling by the European Court of 

Justice (ECJ, which is the EU’s highest court) on 

14 September 2010. This upheld an earlier judgement 

by the court of first instance in which the 

plaintiffs sought to have the judgement annulled 

on the basis of the Commission erring in law. 

The Akzo Nobel case involved a dispute over 

the duty to disclose certain correspondence between 

Akzo Nobel’s managing director and the 

company’s Dutch in-house lawyer, to EU and UK 

competition officials during a surprise cartel investigation. 

The conflict arose during a 2003 European 

Commission onsite investigation seeking evidence 

of any anti-competitive practices at Akzo’s 

U.K. offices in Manchester, United Kingdom. 

What did the court rule? 

This decision upheld the CFI’s decision and the 

ECJ found that in order to benefit from legal professional 

privilege: 

• the exchange with the lawyer must be connected 

with the client’s rights of defence; 

• the exchange must emanate from an ‘independent 

lawyer’; and 

• in order to qualify as an ‘independent lawyer’ 

the lawyer must not be bound to the client by 

a relationship of employment. 

The ECJ’s view is that an in-house lawyer, 

does not enjoy the same degree of independence 

from his employer that a lawyer in an external law 

firm does in relation to a client (even if the inhouse 

lawyer is enrolled with their respective Bar 

or Law Society and subject to its professional and 

ethical obligations). It stated that no predominant 

trend towards protection under legal professional 

privilege of communications within a company or 

group with in-house lawyers existed in the legal 

systems of the 27 Member States of the EU. 

Debate has raged over companies’ rights to attorney-client 

privilege in the EU for some time now. 

For example, In AM&S Europe v Commission, the 

ECJ held that communications between lawyers and 

their clients should be protected at Community level, 

so long as the communications were connected to 

the client’s rights of defence and with “independent” 

lawyers. This was considered to exclude lawyers 

bound to the client by a relationship of employment. 

A series of arguments that the law should be recast 

in the light of developments in compliance practice, 

cartel law and the role of the in-house lawyer were 

roundly rejected and this judgment has brought to 

an end any hope (for the time being) that any such 

change will be achieved through the courts. 

What are the implications? 

Following the ruling, in EU competition cases 

taken by the European Commission (Commission), 

companies will only to be able to claim privilege 

for correspondence concerning rights of defence 

in competition cases where advice has been provided 

by external legal advisers. 

EU law versus individual Member 

States’ national laws with regards to 

legal privilege 

Competition investigations can be carried out 

in the EU by the Commission or by the national 

competition authorities. In each specific case, it 

will be evident from the decision ordering the 

investigation (which must be presented to the 

undertaking concerned in writing prior to the inspection), 

what authority has ordered the search. 

The applicable privilege rules will be governed 

by the rules of the country whose competition 

authority is conducting the investigation. Therefore: 

• If the inspection is carried out by a 

national authority: the investigation will be 

governed by national law, this is still the case 

even where the national authority is conducting 

the investigation on behalf of the Commission. 

Therefore, depending on the particular jurisdiction 

and the applicable law, the corresponding 

national competition authority may or may not 

be able to access communications with in-house 

counsel. In countries such as Ireland, the United 

Kingdom and the Netherlands, in-house counsel 

communications are covered by legal privilege. 

However, in other EU Member States such as 

France and Germany legal professional privilege 

with regard to communications with in-house 

counsel does not exist. 

• If the inspection is carried out by the 

Commission: the rules governing the investigation 

(legal privilege included) are governed by EU 

law. Therefore, in light of this ruling, in-house 

What does this mean to companies 

operating in Serbia, Montenegro, 

Macedonia and Bosnia Herzegovina? 

In Serbia, Montenegro, Macedonia and Bosnia 

Herzegovina legal privilege extends to all lawyers 

involved in the defence, as long as they are registered 

with the bar. However, if any of the authorities 

takes the ECJ’s approach by looking at 

the purpose of legal privilege, it may consider the 

privilege to extend only to independent lawyers. 

Considering the regional (at times blind) trend 

towards full compliance with EU law (acquis communautaire) 

it is possible that in the near future 

regional authorities will follow the EU practice on 

this issue in domestic cases and investigations. 

Accordingly, depending on the position taken by 

the local authorities, previously privileged correspondence 

could become non privileged. 

From a practical point of view, there have not 

been many dawn raids and onsite investigations in 

the region. However, as the regional competition 

authorities become more adept to the specific nuances 

of EU competition law, and as their capacity 

to investigate increases, so too will the number of 

investigations taking place. Accordingly, in-house 

lawyers should be acutely aware of this possibility. 

If it is necessary to produce something in writing, 

in-house lawyers should make every effort to 

draft advice which would not be deemed harmful 

if it was to be viewed by the authorities. Alternatively, 

in such instances, they should consult an 

independent lawyer that is not bound to the client 

by a relationship of employment. 

ECJ Confirms 

the Commission’s 

Views on In-house 

Legal Professional Privilege 

lawyer communications should be accessible by 

the Commission as they will not fall under the 

protection of legal privilege. 

30 31

The new Competition Commissioner has an 

extensive background in economics, law and politics. 

He began his career as an economist for the 

Council Bureau of the Spanish Chambers of Commerce 

in Brussels in 1972. Three years later he 

went back to Spain and started working as chief 

economist for UGT, a Spanish trade union, and 

entered the Spanish Parliament in 1979. Mr. Almunia 

held two ministerial posts in Spain. He was 

the Minister for employment and social security 

(from 1982 to 1986), and the Minister for public 

administration (from 1986 to 1991). Before joining 

the Commission in 2004, he was leader of the 

Spanish socialist party between 1997 and 2000 

and the Socialist candidate for Prime Minister in 

Spain in 2000. 

Officials who have worked closely with Mr. 

Almunia say he is a competent, hard-working and 

thorough regulator, who “likes to get into the details 

of his dossiers” and carefully evaluates both 

advantages and disadvantages before making any 

important decision. Several persons inside the 

Commission have stated that, “due to his solid 

economic and legal background, he will be able 

rapidly to familiarize himself with the competition 

portfolio and gain the confidence of the services 

that report to him.” 7 

In his new job, Mr. Almunia will have to step 

into the shoes of his predecessor and address various 

ongoing matters in relation to cartels, mergers 

and acquisitions, abuses of dominant position, 

private enforcement, distribution agreements, 

and state aids. In an interview for the European 

Business Review 8 Mr. Almunia has stated that: 

“Contrary to what is sometimes suggested, there 

can be no sustainable growth within Europe without 

effective competition in the internal market. 

This is what drives companies to innovate and to 

expand, for the benefit of consumers, businesses, 

and the European economy as a whole. I believe 

that those goals can be achieved through robust – 

but fair – enforcement policy, a sound legislative 

framework, and competition advocacy” 9 . 

New EU Commissioner 

On 1 February 2010 Mr. Joaquin Almunia, the 

former EU Commissioner for economic and monetary 

affairs, became the new EU Commissioner 

for Competition Policy, replacing former Competition 

Commissioner Ms. Neelie Kroes. 

Mr. Almunia studied law and economics in 

Spain at the University of Deusto, Bilbao and 

completed follow-up work in France (at the École 

Pratique des Hautes Études). He has also participated 

in the Government Program at Harvard University 

(the Kennedy School of Government). 

7 http://www.jonesday.com/newsknowledge/publicationdetail.aspx?publication=6825 

8 http://www.europeanbusiness.gr/page.asp?pid=742 

9 Ibid. 

32 33

Both Serbia and Bosnia-Herzegovina have 

appointed new decision-makers to their national 

competition authorities. 

Serbia 

In October 2010, the Serbian Parliament appointed 

Ms. Vesna Jankovic as the new Head of 

the Competition Commission, replacing Ms. Dijana 

Bajalovic-Markovic. Ms. Jankovic graduated 

from the Law Faculty of Belgrade and has worked 

as a district court judge since 2003. The Parliament 

also appointed new members of the Competition 

Council: 

- Prof. Dr Vesna Besarovic, 

- Prof. Dr Sanja Graic-Stepanovic, 

- Ms. Gordana Lukic, and 

- Mr. Ivan Ugrin. 

Ms. Jankovic and the Council members are appointed 

for a 5-year term. 

The new Commission will face many challenges 

in competition enforcement inherited from 

its predecessors. High hopes have been put on the 

new members led by Ms. Jankovic, however, to 

rise up to the task they have engaged into. Their 

path will not be without hurdles; nevertheless 

given their extensive legal background in competition 

and EU law, they seem to be well equipped 

for the job. 


The Competition Council of Bosnia and Herzegovina 

appointed a new Chairman, Mr. Stjepo 

Pranjic. Mr. Pranjic has been a member of the 

Council since its establishment, its Chairman for 

several terms and he is also the current Chairman 

since 1 October 2010. Following some minor modifications 

in the composition of the Council, the 

remaining members are: 

- Ms. Gordana Zivkovic, 

- Mr. Gordan Raspudic, 

- Ms. Maida Campara, 

- Ms. Arijana Regoda Drazic, and 

- Mr. Ibrica Lakisic. 

The idea behind reappointing Mr. Pranjic is 

to ensure legal certainty through enabling the 

continuity of the Council’s work. Members of the 

Council have been selected among well-recognized 

experts in the field of law for a 6-year period. 

New Competition 

Commissioners in the Region 

34 35

The current Macedonian Competition Law 

(Law on Protection of Competition, “Official Gazette 

of the Republic of Macedonia” No. 4/05, 

amended in 2006 and 2007) is in effect since 1 

January 2005. The Macedonian Competition 

Law is based on substantive provisions of the EC 

Treaty and ECMR. As a result of the efforts of the 

Macedonian government to further harmonise the 

country’s legislation with the EU regulations, the 

new law on protection of competition has been 

enacted in early November 2010 (“New Law”). 

The appliance of the New Law is expected to begin 

by the end of the year. 

Like the competition law from 2005, the New 

Law covers three main areas of potential negative 

effects to competition: (i) prohibited agreements, 

(II) abuse of a dominant market position, and (iii) 

concentrations of undertakings (merger control). 

The position of the authorised regulator – the 

Competition Commission, composed of five members 

appointed by the Macedonian Assembly for 

a five-year period - is not significantly amended 

by the New Law. 

Furthermore, with regard to merger control in 

Macedonia, there are no significant amendments 

in this area. Mandatory merger notification is triggered 

if the relevant thresholds are met where: 

I - The worldwide turnover of parties is exceeding 

EUR 10 million, with at least one undertaking 

having a registered local presence; or 

II - all undertakings concerned have a local 

Macedonian turnover exceeding EUR 2.5 million; or 

III - one undertaking concerned has a market 

share of more than 40% or a combined market 

share in the relevant market exceeding 60%. 

One of the significant changes in the New Law 

is the introduction of the leniency policy for the 

first time in Macedonia. Full leniency would be 

available to the first cartel member who produces 

evidence to the Competition Commission of the 

existence of a cartel which will enable the Agency 

to undertake further actions against the cartel 

members. Please see the article on the envisaged 

leniency provisions of the New Law in the first 

chapter of this book. 

Proceedings before the Competition Commission 

have been in the focus of the latest amendments. 

Namely, the final section of the New Law 

is providing EU-compliant solutions with regard 

to the evidence, misdemeanour and administrative 

procedures before the Competition Commission. 

It is important to mention that the Competition 

Commission is independent in the processing 

and decision-making related to the sanctioning 

of misdemeanours related to the disturbance of 

competition. These very important sections of 

the Competition Commission’s scope of work are 

further regulated within the New Law, providing 

more precise solutions and authorisations. It is expected 

that such changes will provide the basis for 

effective, responsive and just control of competition 

in Macedonia. 

New Macedonian Competition Law 

36 37

Inside View 

38 39

The merger control regulations in the region have 

been mostly based on their European counterparts, 

predominantly the EC Merger Regulation (Council 

Regulation [EC] no. 139/2004). The basic principles 

in the assessment of concentrations from 

the EC Merger Regulation have been implemented 

into the regional competition laws, regulations and 

guidelines. The main differences among the regional 

merger control rules are those in the thresholds 

for mandatory merger filings and to some extent 

the policy approach taken by each of the relevant 

authorities. 

Regional Overview - 

Merger Control 

Similarities between 

Regional 

Jurisdictions 

Serbia 

Area: 88,361 km 2 

Population: 7,306,677 (excl. Kosovo) 

GDP (total, 2010 estimate): USD 80.602 billion 

GDP (per capita, 2010 estimate): USD 10,897 

(excl. Kosovo) 

40 

41

Competition Law in Serbia 

The Serbian Competition Law was enacted by 

the Serbian Parliament on 8 July 2009. The Law 

was published in the Official Gazette of Serbia No. 

51/2009, and it is in full force since 1 November 

2009. 

In comparison to the previous Competition 

Law (2005), the basic principles have remained 

the same, but for more significant improvements 

- the merger control thresholds have been increased, 

the filing deadline has been extended 

from 8 to 15 days, the applicant can now be fined 

in case of late filing, and the Competition Commission 

got the power to impose the fines and other 

sanctions directly. 

The Competition Commission consists of the 

Council (four members) and the Head of the Commission, 

who are appointed by the Serbian Parliament. 

Merger Control Thresholds 

Merger filings are mandatory in Serbia if either 

on the two thresholds has been met: 

• the total annual income of all the parties to 

the concentration realised on the world market in 

the previous accounting year exceeds EUR 100 

million, whereby at least one the parties to the 

concentration had an annual income exceeding 

EUR ten million on the market of the Republic of 

Serbia; or 

• the total annual income of at least two parties 

to the concentration on the market of the Republic 

of Serbia exceeded EUR 20 million in the 

previous fiscal year, whereby at least two parties 

to the concentration each had an annual income 

exceeding EUR one million on the market of the 

Republic of Serbia. 

Besides that, the transaction taking place pursuant 

to the Law on Takeover of Joint Stock Companies 

must be notified, even though the relevant 

thresholds have not been met. Although the law is 

not completely precise in this manner, this provision 

should pertain to local public companies only. 

Exceptionally, the Competition Commission 

may institute an ex officio merger control procedure 

if, a concentration which had not been notified, 

results in the merged undertakings having a 

market share above 40%. The market share (40%) 

threshold is not a jurisdictional threshold, i.e., the 

parties are not obliged to file a notification with 

the Competition Commission if their combined 

market share in any relevant market exceeds 40%. 

However, to avoid a situation of ex post analysis, 

it may be advisable to notify the Competition 

Commission of the intended merger, if the parties’ 

market shares do exceed this threshold (in Serbia). 

Since the enactment of the Competition Law, according 

to our knowledge the Competition Commission 

has not initiated any ex officio merger 

control procedure where a concentration which 

has not been notified might have resulted in the 

parties’ market share above 40%. 

Filing deadline 

Merger notification must be filed with the 

Competition Commission within 15 days as of 

entering into the agreement or announcement of 

the public offer, depending what takes place first. 

If the parties do not file in a timely manner, the 

Competition Commission may impose fines ranging 

in the amount of EUR 500 to EUR 5,000 for 

each day that the filing is late. 

Fees 

The applicant is obliged to pay a fee for the 

issuance of the merger clearance decision by the 

Competition Commission. 

The fee is different depending on whether 

the Commission decides in a summary (Phase I) 

or inquiry proceedings (Phase II). For issuance of 

the clearance in summary proceedings, the fee is 

0.03% of the total annual income realized by the 

parties to the concentration, but this amount is 

capped to RSD 2,000,000 (approx. EUR 19,000). 

For issuance of the merger clearance in the inquiry 

proceedings, the fee is 0.07% of the total annual 

income realised by the parties to the concentration, 

but this amount is capped to RSD 4,000,000 

(approx. EUR 38,000). If the Commission decides 

to reject the notification (i.e. if it does not clear 

the transaction), the fee for issuance of the decision 

is RSD 90,000 (approx. EUR 850). 

Fines 

The fines for implementing a concentration 

that was not notified or not cleared are in the 

amount up to 10% of the filing parties’ total annual 

turnover in the previous fiscal year. The applicant 

is liable for paying the fine. As far as we 

are aware, no fine has ever been imposed in Serbia 

for any infringement of competition, including an 

omission to file merger notification. 

If the filing party does not file the notification 

with the Competition Commission in a prescribed 

deadline, the Commission may issue a procedural 

penalty ranging in the amount of EUR 500 to EUR 

5,000 for each day of failing to file the notification. 

No procedural penalty has ever been imposed 

in Serbia for a late merger filing. 

The Competition Commission can cancel an 

already implemented concentration (de-concentration), 

which can be effected by way of a splitoff, 

sale of shares, cancellation of the agreement 

or performing any other action which would lead 

to restitution of the status prior to implementation 

of the concentration. As far as we are aware, 

the Competition Commission has not implemented 

any de-concentration to date. 

Practice 

In several recent cases, the Competition Commission 

showed that it is ready to consider the 

relevant geographic market as being wider than 

just Serbia. This is indeed important if the parties’ 

market shares are above the presumed dominant 

position limit (40% market share). 

According to the Commission’s recent correct 

practice, even if the parties’ market shares 

on the Serbian market are above 40%, the Commission 

would clear the concentration if the relevant 

geographic market is larger than Serbia (for 

instance CEFTA, Europe, worldwide). The market 

would in particularly be considered as being larger 

than Serbia if the market is not regulated by a national 

regulator (such as for instance, Agency for 

Electronic Communications), if there are no legal, 

administrative or economic barriers to entry into 

Serbia and if the transport costs are low. 

The Commission might nevertheless ask the 

parties’ main customers if they could purchase the 

relevant product from some other sources instead 

of the parties themselves, i.e. whether the merger 

would jeopardise the customers’ supplies for any 

other reason. If there are no barriers for entry 

and if the customers provide a positive report in 

favour of the merger, it is highly likely that the 

merger would be unconditionally cleared, even if 

the parties’ market shares are considered as being 

high. 

Hence, in preparation of the transaction, even 

if you see that both you and your target’s market 

shares are rather high on the Serbian market, 

it does not mean that you will not obtain merger 

clearance. Besides the market shares, the merger 

is always estimated in the light of the effects that 

it can cause after its implementation. 

According to its last annual report, in 2009, 

the Serbian Competition Commission issued 115 

merger clearances, out of which two were issued 

with conditions and obligations. 

Contact Details 

Competition Commission 

Kneginje Zorke 7 

11000 Belgrade 

Serbia 

Tel: +381 11 3811 911 

Fax: +381 11 3811 999 

office@kzk.gov.rs 

http://www.kzk.org.rs/ 

42 43


Area: 13,812 km 2 

Population: 672,180 (July 2009 estimate) 



Competition Law in Montenegro 

The Montenegrin Competition Law (Official 

Gazette of Montenegro, no. 69/05 and 37/07) 

came into force on 1 January 2006 and is still in 

effect. 

The Law itself is quite similar to the other 

competition laws in the region. From the merger 

control side, the most different part, in comparison 

to its neighbouring countries, is the low 

thresholds for the filing of merger notifications in 

Montenegro. 

Contrary to the other regional jurisdictions 

who all have the collective decision-making bodies, 

the Montenegrin Competition Authority is 

managed by the Director, Mr. Miodrag Vujovic. 

To our knowledge, the Competition Authority 

of Montenegro is currently drafting a new Competition 

Law. However, as of yet no further official 

information is available. 


Merger filing in Montenegro is mandatory if 

one of the following conditions is met: 

- the combined turnover of the undertakings 

involved for the previous financial year exceeds 

EUR 3 million on the Montenegrin market; or 

- the total combined turnover of the undertakings 

involved on the worldwide level for the 

previous financial year exceeds EUR 15 million, 

and at least one of the undertakings involved is 

registered in Montenegro. 


The notification (request for approval) must 

be filed to the Competition Authority in Montenegro 

within seven days as of the signing of 

the agreement or the announcing of the public 

takeover bid. However, this deadline is not strictly 

adhered to and the Competition Authority would 

not impose any fine even if the deadline has expired. 

Nevertheless, the concentration may not be 

implemented until the Authority clears the transaction. 

The filing can be made based on a letter of 

intent, or any similar document showing the parties’ 

intent to enter into the transaction. 

Fees 

There are no fees in Montenegro, either for 

filing of the notification or for issuance of the decision 

by the Competition Authority. 

Fines 

In case of implementing a concentration without 

the clearance, the filing party may be fined 

with a fine amounting from 200 times of the 

minimum monthly wage to 300 times of the minimum 

monthly wage in Montenegro. The minimum 

monthly wage in Montenegro is approximately 

EUR 55. 

Practice 

The Montenegrin Competition Authority, 

since the enactment of the Competition Law in 

2005, has mostly developed its practice in the 

merger control area. The number of the merger 

notification has increased during the past year, 

most likely because of the upcoming accession 

negotiations between the EU and Montenegro. 

As we are aware, the Authority has never 

commenced any proceedings for the abuse of 

dominant position or for the restrictive agreements. 

In the last year the Authority has received 

more merger filings than in the previous ones. In 

2010 the Authority started its first web presentation: 

http://www.uzzk.gov.me/. 


Competition Authority 

Svetozara Markovica 26 

81000 Podgorica 


Tel: +382 20 232 297 

Fax: +382 20 232 042 

http://www.uzzk.gov.me/index.php?lang=en 

44 45


Area: 51,129 km 2 

Population: 4,613,414 (2009 estimate) 



Competition Law in Bosnia and 

Herzegovina 

The Competition Law of Bosnia and Herzegovina 

(Official Gazette of Bosnia and Herzegovina, 

no. 48/2005, 76/2007 and 80/09) has 

been applied since 2005. The Competition Council 

consists of six members who are appointed in order 

to reflect the national structure of Bosnia and 

Herzegovina. The current members of the Competition 

Council of Bosnia and Herzegovina are Mr. 

Stjepo Pranjic (Head of the Council), Ms. Gordana 

Zivkovic, Mr. Gordan Raspudic, Ms. Maida Campara, 

Ms. Arijana Regoda Drazic, and Mr. Ibrica 

Lakisic. The Council is appointed each year. 


Filing of merger notification is mandatory if 

any of the following thresholds has been met: 

- Annual turnover of all the parties to the 

concentration in the previous year on the worldwide 

level was above BAM 100 million, and 

- The turnover of each of the parties was 

above BAM 8 million in Bosnia or the aggregate 

market share on the relevant market of Bosnia and 

Herzegovina of all the parties to the concentration 

exceeds 40%. 


The Merger Notification must be filed with 

the Competition Council within 15 days from entering 

into the agreement or announcement of the 

public takeover bid for takeover of a joint stock 

company. This deadline is very strict and if the 

applicant is late with filing (even by a day), the 

Competition Council, in general, imposes very severe 

fines. 

Fees 

Concerning merger control, there are two 

types of fees in Bosnia and Herzegovina: (i) filing 

fee and (ii) clearance fee. The fee for filing the 

merger notification amounts to BAM 2,000 (approx. 

EUR 1,000). The fee for issuance of the decision 

may vary depending on the fact whether 

the Competition Council issued the decision in the 

summary proceedings (Phase I) when the clearance 

fee is BAM 2,500 (approx. EUR 1,250) or in 

the inquiry proceedings (Phase II) when the clearance 

fee is BAM 25,000 (approx. EUR 12,500). 

Fines 

The fines for failure to notify are up to 1 % 

of the concerned undertaking’s annual turnover 

realised in the previous business year. In practice 

the fines have mostly ranged between EUR 95,000 

and EUR 200,000. In case of implementation of 

concentration without the clearance, the Competition 

Council could fine the filing party with a fine 

of up to 10% of its annual turnover from the previous 

business year. In practice, the Court of Bosnia 

and Herzegovina (as the second instance) has 

confirmed the fines imposed by the Competition 

Council for lateness in filings for notifications, or 

for the implementation of the concentration without 

the clearance. 

Practice 

Since its establishment, the Bosnian Competition 

Council has developed its practice more in 

merger control cases than in antitrust. There are 

only very few cartel and abuse of dominance cases. 

The Council has usually imposed very severe 

fines for late merger filings or for implementation 

of the merger without the clearance. 

According to the Competition Council’s Annual 

Report for 2009, in 2009 the Council issued 

41 merger clearances. 


Competition Council 

Radiceva 8 

71000 Sarajevo 


Tel: +387 33 251 406 

Fax: +387 33 251 406 

kontakt@bihkonk.gov.ba 

http://www.bihkonk.gov.ba/main.html 

46 47


Area: 25,713 km 2 




48 49

Competition Law in Macedonia 

The Macedonian Competition Law (Official 

Gazette of Macedonia, no. 04/05, 70/06 and 

22/07) is applied since 1 January 2005. The appliance 

of the new law discussed earlier in this publication 

is expected to begin by the end of the year. 

The Competition Commission of Macedonia 

consists of five members, namely Mr. Cedomir 

Kraljevski (Head of the Commission), Mr. Todor 

Zafirov, Mr. Mevlan Luftiu, Mr. Gorgi Mitreski and 

Mr. Vasil Donev. 


In Macedonia mandatory merger notification 

is triggered if either: 

- All undertakings concerned have a worldwide 

turnover exceeding EUR 10 million, provided 

that at least one undertaking has a registered local 

presence on the territory of Macedonia; or 

- All undertakings concerned have a local 

Macedonian turnover exceeding EUR 2.5 million or 

- One undertaking concerned has a market 

share of more than 40% or combined market share 

in the relevant market exceeding 60%. 


The Macedonian Competition Law does not 

provide for a strict deadline for the filing of a notification. 

According to the Law, the notification 

must be filed prior to implementation of the concentration 

and following entry into an agreement, 

or the announcement of the public bid or acquisition 

of the controlling interest in the basic share 

capital of another undertaking. 

The general deadline for issuance of the decision 

is 25 business days from filing the complete 

notification in the following cases: if the notified 

transaction is not a concentration as stipulated by 

the Law, or if the concentration shall not cause 

significant prevention, restriction or distortion of 

the competition on the relevant market. The deadline 

for issuance of the decision can be extended 

to 35 business days as of the receipt of the complete 

notification in case that the parties to the 

concentration wish to amend the notification in 

order to comply with the provisions of the Law 

and in order of receiving the positive clearance. 

The terms for issuance of the decision can be further 

extended by an additional 15 business days 

at the parties’ request or the Commission can extend 

the term by an additional 20 business days 

upon the agreement of the parties. 

Parties to a concentration are required to suspend 

any act of implementation of the Transaction 

until obtaining clearance from the Commission or 

the expiry of the terms for the issuance of the 

decision. Nevertheless, the applicant may request 

the Commission to exempt the suspension obligation, 

for justified reasons. 

However, the parties may implement a transaction 

which is based on a public bid for purchase 

of securities if the applicant without delay notifies 

the Commission in accordance with the Law 

on Take-Over of Joint Stock Companies and if 

the applicant does not exercise its voting rights 

attached to the securities in question or does so 

only in the extent which is necessary to maintain 

the full value of its investment. This exemption 

must be granted by the Commission. 

Fees 

In the case of merger control, the applicant is 

obliged in Macedonia to pay the filing fee in the 

amount of approx. EUR 100, whereas the merger 

clearance fee is approx. EUR 500. 

Fines 

Fines for failure to notify the concentration 

or the implementation of a concentration without 

clearance are up to 10% of the annual turnover of 

the undertaking realized in the previous business 

year. 

The Commission may ask the participants 

in the concentration to annul an already implemented 

concentration and to impose orders for 

the restitution of competition in the market, if the 

concentration has been implemented contrary to 

the law. 

Practice 

In comparison to 2009, the Macedonian Competition 

Commission’s practice in merger control 

has increased in 2010; the Commission issued ten 

merger clearances. It appears that the merger control 

cases under the Macedonian rules are still not 

at the level of 2007, when the largest number of 

the filings was made. The Commission has not imposed 

any fine in 2010 for breach of the merger 

control regulations. 


Competition Commission 

Mito Hadzivasilev Jasmin bb 

1000 Skopje 


Tel: +389 2 3298 666 

Fax: +389 2 3296 466 

kzk@kzk.gov.mk 

http://www.kzk.gov.mk/eng/index.asp 

50 51

Competition Law in Croatia 

The new Croatian Competition Law was enacted 

on 24 June 2009 and came into force on 1 

October 2010. The Law was published in the Official 

Gazette of Croatia No. 79/09. 

The Competition Agency consists of five 

members, appointed by the Croatian Parliament 

(Sabor). The current members of the Council are 

Ms. Olgica Spevec (Head of the Council), Mr. 

Mladen Cerovac, Mr. Milivoj Marisic, Ms. Mirna 

Pavletic Zupic and Ms. Vesna Patrlj. 


Merger filings are mandatory in Croatia if the 

cumulative thresholds have been met: 

• the total annual income of all the parties to 

the concentration realised on the world market in 

the previous accounting year exceeded HRK one 

billion (approx. EUR 136 million), 

• at least one of the undertakings involved is 

registered in Croatia and 

• each of at least two parties to the concentration 

had an annual income exceeding HRK 100 

million (approx. EUR 13.6 million) on the market 

of the Republic of Croatia. 

Practice 

Due to the high thresholds for merger filings, 

the Croatian Competition Agency is reviewing 

smaller number of merger filings in comparison to 

the other regional jurisdictions. In 2009 the Croatian 

Competition Agency issued 17 merger clearances 

out of which one was issued with conditions 

and obligations. 


Agency for Protection of Competition 

Savska cesta 41 

10000 Zagreb 

Croatia 

Tel: +385 1 617 64 48 

Fax: +385 1 617 64 50 

agencija.ztn@aztn.hr 

http://www.aztn.hr/ 


The Croatian Competition Law does not provide 

for a deadline for the merger filing, but the 

filing must be made before the implementation of 

the concentration. 

Fees 

Croatia 

Area: 56,594 km 2 




The fee for filing the merger notification 

amounts to HRK 10,000 (approx. EUR 1,350). 

The clearance fee for Phase I amounts to 10,000 

HRK (approx. EUR 1,350) and for Phase II – HRK 

150,000 (approx. EUR 20,400). 

Fines 

An undertaking which implemented a merger 

causing the significant prevention, restriction or 

distortion of competition can be landed with a 

fine amounting to 10% of its annual turnover. 

52 53

Competition Law in Slovenia 

The Slovenian Competition Law was enacted 

by the Slovenian Parliament in April 2008. The 

Law was published in the Official Gazette of Slovenia 

No. 36/08 and 40/09. 

The Competition Office is run by the Director. 

The current Director is Mr. Jani Sorsak. The office 

reaches decisions in panels, which consist of the 

Director and two Office employees appointed by 

the Director. 


Competition Protection Office 

Kotnikova 28/VII 

1000 Ljubljana 

Slovenia 

Tel: +386 1 478 3597 

Fax: +386 1 478 3608 

uvk.mg@gov.si 

http://www.uvk.gov.si/en/ 


Merger filings are mandatory in Slovenia if either 

on the two thresholds has been met: 

• the total annual turnover of the undertakings 

involved in a concentration on the Slovenian 

market in the preceding business year exceeded 

EUR 35 million, and the annual turnover of the 

target company on the Slovenian market in the 

preceding business year exceeded EUR 1 million; 

or 

• if, in case of joint venture, the annual turnover 

of at least two undertakings concerned in a 

concentration in the preceding business year exceeded 

EUR 1 million. 


The filing deadline is 30 days as of execution 

of an agreement, announcement of a takeover bid 

or acquisition of a controlling interest. 

Fines 

Slovenia 

In the case of the implementation of concentration 

without the Slovenian Competition Office’s 

clearance or in the event of a late filing, the 

filing party can be fined with a fine amounting 

to 10% of its annual turnover from the previous 

business year. 

Practice 

Area: 20,273 km 2 




According to the Annual report for 2009, the 

Slovenian Competition Office issued 18 merger 

clearances in 2009. 

54 55

Bosnia-Herzegovina, Croatia and others. However, 

despite the fact that such a novel rule has 

expanded from the EU into the Balkan countries, 

when measured in numbers it stands at zero. 

While it is true that the legislative framework is 

lacking several key elements to make this policy a 

reality, the lack of awareness is probably the single 

most important factor which contributes to the 

status quo. 

Four high profile cases since the autumn of 

2009 have significantly raised public awareness of 

the option of private enforcement in both Serbia 

and Bosnia-Herzegovina. Cases preceding the private 

enforcement were, in a way, reruns of more 

notable EU antitrust classics: the practice which 

has become a specialty on the menu of competition 

authorities of the EU candidate countries. 

What do we mean by 

“private enforcement” 

Technically speaking, private enforcement of 

competition law is as old as competition law itself. 

From Mesopotamian scriptures to online law 

directories, the law has always allowed persons 

to claim reparation for damages. As soon as cartels 

and abuse of dominance had become illegal, 

anyone paying higher prices (a cartel premium) 

became entitled to sue the cartel parties for damages. 

In practice, however, private enforcement has 

actually existed only in some jurisdictions: the 

United States and to a slightly lesser extent the 

United Kingdom. Continental European countries 

have always been sufficiently enthusiastic about 

Private enforcement and 

what it means for the region 


“Any citizen or business who suffered harm as 

a result of a breach of antitrust rules must be able 

to claim reparation from the party who caused the 

damage.” 

The rationale behind this sentence is very 

sound; the policy behind it is very plausible. It 

is after all case law sanctioned by the European 

Court of Justice. As of recently, this principle 

has been an integral part of local competition 

laws even in countries outside EU, like Serbia, 

private enforcement that the notion of private 

enforcement has been discussed and considered 

very thoroughly. There has always been a wide 

consensus about the need for private enforcement 

in the European Union. However, having courts 

in 10, 12, 15, 25, 27 countries applying it on bal- 

56 57

anced and fair terms is like training cats to do jazz 

ballet. 

Simply speaking, when it comes to the fundamental 

concepts of civil law, even the smallest 

gaps in legislation or practice can prove to be insurmountable 

obstacles in the practical pursuit of 

private enforcement cases. However, the political 

willingness to overcome these hurdles has grown 

over decades. Many white and green papers later, 

various member states have started implementing 

the private enforcement rules. Some have demonstrated 

great caution with the progress; others 

have rushed in. In the end, however, all of these 

efforts will meet at point where private enforcement 

is an existing, readily accessible and efficient 

tool, another strong deterrent against anticompetitive 

behavior. 

Roots of private 

enforcement in the region 

Many competition law experts from more developed 

European countries have started “spreading 

the good word” outside the EU. Despite good 

intentions both on the side of transitional governments 

and EU experts, many are arguing today 

that the relevant provisions in the laws are 

somewhat vague and narrowly drafted. Although 

overwhelmed with good intentions and just cause, 

domestic provisions consisting of a handful of 

clauses should not be interpreted as an adequate 

infrastructure for uninhibited private enforcement 

actions. 

It needs to be understood that the concept of 

private enforcement is such that it can either be 

heavily regulated or left unregulated. Jurisdictions 

such as the US and the UK, have centuries 

of case law related principles which, in tandem 

with legislation have helped to develop a variety 

of well established legal principles, (in addition, 

such jurisdictions have almost a century of 

antitrust experience under their belts). Within 

these principles newer concepts can then gradually 

develop 10 , and such jurisdictions have an army 

10 The UK House of Lords ruled in Garden Cottage Foods v Milk 

Marketing Board ((1984) 1 AC 130, (1983) 3 CM LR 43) that 

third parties were able to sue for damages for a breach of articles 

81 and 82 of the EC Treaty. A general EC right to damages for 

loss incurred by a breach of article 81 upon the establishment 

of a causal relationship between the infringement and the actual 

harm suffered was established by the European Court of Justice 

in Courage Ltd v Bernard Crehan (case C -453/99 [2001] ECR 

I -6297). 

of well trained judges to enforce and to interpret 

these legal principles. Naturally concepts such as 

private enforcement can be derived from more 

general rules related to compensatory and punitive 

damages, these concepts can then develop 

accordingly. However, jurisdictions lacking such a 

flexible legal framework will no doubt need detailed 

rules and guidelines in order to ensure that 

just and equitable judgments are arrived at in the 

area of private enforcement. 

Developing a framework 

within which private 

enforcement can function 

In order for a court in the West Balkans to 

award damages to a party seeking compensation, 

it will need to examine the following factors: 

1. Whether or not the plaintiff has suffered 

damages; 

2. Whether or not there is any responsibility 

on the side of the defendant (i.e. whether the defendant 

can be exculpated on some basis); and 

3. If there is a cause of action arising between 

the two parties. 

Having checked for each of these three items, 

the court will also need to calculate the amount of 

the damages. 

Practical difficulties in the application of 

such factors 

The above rules or factors are pretty straightforward 

in the instance where a schoolgirl 11 happens 

to break a school window. A stone thrown 

from her hand through the glass window of a gym 

door provides sufficient answers to each of the 

first three factors considered above. In addition, 

the glazier’s bill works wonders when it comes 

to the question of quantifying the extent of the 

damages. However, if one examines a second scenario 

where a restaurateur makes a claim against a 

contractor for poor plumbing and a resulting sewage 

leak, this is a variation of the same principle; 

however in this instance the quantification of the 

damages proves more problematic. The variable 

between this scenario and the former is the extent 

of discovery and evidence. Such scenarios are already 

well provided for in jurisdictions like the UK 

11 Deviation from the stereotype is to be interpreted as a tribute 

to political correctness. 

which facilitate the use of joint experts and which 

also have extensive disclosure obligations, including 

pre action disclosure. Although such a system 

is not perfect, it provides a potential plaintiff (and 

indeed a defendant) with more clarification and 

comfort from the outset than the court systems 

and structures available in the West Balkans do. 

Private enforcement is generally seen to be 

more effective when it comes to areas that have 

clear standards for liability and which have a clear 

consensus on what conduct is deemed to be unlawful. 

For many commentators, this means hardcore 

cartel cases. When it comes to single-firm 

cases, (i.e. the abuse of a dominant position), private 

enforcement is generally seen as being more 

problematic. 

Generally speaking, most courts in the West 

Balkans would find even a relatively straightforward 

dominance case (from the competition 

authority’s point of view) extremely difficult to 

adjudicate. For example, if we take the example 

of a margin squeeze case in the telecom sector, 

this would be a relatively straightforward matter 

from the perspective of a national competition authority. 

The raft of case law emanating from both 

the EU level as well as from the domestic member 

states national courts to use as guidance when arriving 

at a decision is immense. Slightly ambiguous 

or undercooked provisions in the domestic 

competition legislation can be interpreted (albeit 

in a non-binding manner) in light of the extensive 

collection of decisions, interpretations and 

guidelines. However, if we look at the same case 

from the perspective of a civil law judge, we realize 

that that the fundamental civil law principles 

are simply insufficient to enable the court to hand 

down a judgment that could be deemed meaningful 

from a competition law point of view. 

A practical example of the 

difficulties encountered 

Returning to the example of a telecom margin 

squeeze case, let us now imagine that there 

are two plaintiffs. The first is a potential entrant 

and the other an existing competitor. Although it 

is clear that they both will have suffered damages, 

it would be very difficult for the existing competitor 

to quantify the damages whilst the potential 

entrant will find it hard to prove that there was 

any damage suffered at all. In addition to this, a 

58 59

defendant should be able to argue that the blame 

for any loss can be attributed to the regulator as 

well as to the defendant and as a result of this, the 

party against whom a plaintiff has a cause of action 

becomes somewhat less clear. The same palette 

of dilemmas remains if a case involves either 

a horizontal cartel or vertical price fixing. 

Now let us add judges without any specific 

training in competition law into the equation. 

Couple this with the fact that the national competition 

laws only date back as far as five years 12 . 

Somewhat predictably, the end result of the above 

mentioned factors is an unpredictable environment 

for both the unfortunate plaintiff and the 

defendant. One can argue that each side knows 

their role, the plaintiff will argue that it has suffered 

damages and the defendant will cry foul that 

in the absence of any detailed private enforcement 

rules, no such process should be allowed. 

However, material consequences aside, in such a 

zero-sum environment the moral burden of making 

an informed decision will lie with the judge. In 

such circumstances, a more cynical author might 

suggest that asking a magic eight ball for an answer 

might be the judge’s best chance at arriving 

at a fair and balanced verdict. 

rebuttable assumption of responsibility for damages: 

rebuttable, meaning the defendant will be 

allowed to challenge the reasoning behind it in a 

civil law procedure. 

However, in the first private enforcement case 

in Bosnia-Herzegovina the complainant had lost 

the case in the procedure at the competition authority 

level but had then decided to pursue the 

case in a civil court on the basis that the decision 

favoring the defendant “has no influence on the 

possible (…) civil liability”. Even if we turn a blind 

eye to this additional ambiguity, all of the other 

obstacles related to unregulated private enforcement 

also remain. 

It would be unfair not to mention that the 

competition authority in Bosnia and Herzegovina 

has an almost impeccable track record in terms of 

the number of its decisions that have been upheld 

by the national high court. Assuming that future 

private enforcement cases will be based on a prohibition 

decision, the private enforcement movement 

in this jurisdiction will only gain continued 

momentum once the country’s lawmakers decide 

to adopt a well regulated yet practically applicable 

mechanism for the overcoming of the obstacles 

mentioned above. 

pinpoint the rogue schoolgirl and hold her responsible 

for damages. However, the quantification of 

damages is a whole different story. Some of the 

proposed solutions would certainly contribute to 

much needed legal certainty (for example, setting 

a rebuttable presumption that damages amount 

to 10% of the defendant’s turnover), while others 

are based on more traditional guidelines for such 

calculations. In truth, the former option (10% presumption) 

is just as unfair as having no rules, because 

when damages are impalpable, proving that 

they exist can be just as equally difficult as proving 

that they do not. 

Conclusions 

There is no easy solution to private enforcement 

rules anywhere. There is an obvious need 

for greater legal certainty. In turn, legal certainty 

calls for thresholds that can only be set on a discretionary 

basis, which in turn makes them unfair 

as they will always benefit one party. Even with 

the fundamental issues resolved, with large sums 

at stake the devil will always lie in the detail - will 

the regulations allow the ‘passing on’ defense, and 

if so to what extend will it be allowed? On what 

basis will the courts determine a lost potential 

profit? (a distinction must be made between the 

lost profits and those that are actually a legitimate 

parameter for quantification). How will the courts 

approach the issue of international cartels, etc? 

With a greater number of private actions being 

taken, the need to ensure the consistent application 

of competition law in this area is likely to 

become more acute. However, before any of this 

happens, perhaps a discussion involving the key 

stakeholders should probably come first. 

Civil enforcement in the West 

Balkans 


To say that private enforcement regulation in 

Bosnia-Herzegovina was rudimentary and underdeveloped 

would be a huge understatement. The 

entire concept of private enforcement is based on 

a clause which is officially translated as follows: 

“A decision issued by the Council of Competition 

has no influence on the possible criminal 

and / or civil liability about which the 

competent courts decide” 

Serbia 

Alas, the situation in Serbia is, far worse. The 

competition authority is notorious for having had 

absolutely none of its decisions confirmed by the 

high court. Therefore, although the first private 

enforcement case in Serbia is based on a prohibition 

decision, this should not be given much 

weight as, when this case goes forward the decision 

is likely to be annulled or overturned. Without 

clear rules on how such a situation is to be 

handled, the court may well be unable to handle 

the process in a methodical and equitable manner. 

Common Problems 

We can only assume that the intention behind 

the text (which was prepared in coordination with 

European Commission’s delegation in Bosnia - Herzegovina) 

was to institute a rule from the European 

Commission’s Green Paper which provide that a 

competition authority’s decision will constitute a 

12 EU-based Competition Laws in both Serbia and Bosnia-Herzegovina 

date from 2005 

Some EU countries have recently enacted more 

detailed private enforcement rules. Some of these 

rules improve the system by increasing the level 

of legal certainty. The easiest way to achieve this 

is by introducing a deus ex machina assumption 

that the competition authority’s decision, upheld 

by the high court, is evidence in itself. Returning 

to the school window analogy, such a decision will 

60 61

The possibility of criminal sanctions being 

taken against an individual under Competition law 

in European Union Member States is confined to 

certain limited offences. Namely: hardcore cartels; 

obstruction of an investigation into a company 

under Competition legislation; or non-compliance 

with an information request during a merger investigation. 

Background on the current 

European Union position 

Today, individuals who participate in cartels 

are at an ever-increasing risk of imprisonment in a 

number of European jurisdictions for their participation 

in cartel activities. Despite the existence of 

other potentially criminal offences of an anti-trust 

nature, combating cartel offences is forefront on 

the European centre stage. A turning point in European 

cartel regulation was reached when Council 

Regulation (EC) No 1/2003 (‘the Regulation’) 

was introduced. 

Since then, European Union competition enforcement 

has undergone a process of modernisation 

in order to optimise its efficiency. The Regulation 

has attempted to increase the effectiveness 

of EU Competition Law by increasing the resources 

available to pursue serious anti competitive behaviour. 

The Regulation delegated an active role 

to local competition authorities and established a 

system of close cooperation between the EU and 

such national authorities. In the new framework 

national competition legislation operates in parallel 

with EU competition law and the national 

competition authorities and/or courts apply both 

national and European competition rules. Concerning 

the enforcement of the EU competition 

rules, full cooperation between the Commission 

and the national authorities of the Member States 

is necessitated by the fact that the European competition 

rules became directly applicable in the 

whole EU. The national competition authorities 

and the Commission form a network of public authorities 

co-operating closely together. 

How does this have a bearing on criminal 

cases under competition rules? 

There are no criminal sanctions under EU law, 

however, authorisation for criminal sanctions under 

Article 5 of the Regulation for competition 

related offences in Member States has been provided 

for. Article 5 basically states that the national 

competition authorities can apply the same 

substantive rules but in divergent procedural 

frameworks and they may impose different sanctions 

as well. This was clarified in the Staff Commission 

Working Paper accompanying the Report 

on the Regulation. However, such divergent criminal 

sanctions had only been introduced by a limited 

number of Member States such as the United 

Kingdom and Ireland under their own criminal 

and competition law regimes. This however, provided 

further clarification on the matter. 

Ireland 

In Ireland, cartels were first criminalised in 

1996. Where there is enough evidence to show 

that a hard-core cartel may exist, the Authority 

prepares a file for the Director of Public Prosecutions, 

with a recommendation that the parties 

involved be prosecuted on indictment. Cartel offences 

are prosecuted on indictment in the Central 

Criminal Court and courts can impose prison sentences 

of up to 5 years and fines of up to €4 million. 

In circumstances where the Authority does 

not consider that the offence warrants prosecution 

on indictment, it can prosecute the case itself 

in the District Court. The sanction of imprisonment 

applies only to hard-core cartels. Other competition 

offences prosecuted in the criminal courts 

are subject only to specific fines as provided for 

under the legislation. Since 2000 a total of 33 convictions 

have been secured for offences under the 

Competition Act. Ten of these convictions were 

secured in 2009 by the Director of Public Prosecutions 

United Kingdom 

In the UK, individuals have only been criminally 

liable for cartel activity since the Enterprise 

Act 2002 introduced the ‘cartel offence’, for which 

a cartel member may face up to 5 years in prison 

and an unlimited fine. The UK saw its first prison 

sentences imposed on members of a cartel in 

2008, when three individuals were sentenced to 

between two and a half and three years in prison 

for their involvement in the global marine hose 

cartel. The individuals in question were arrested 

in the United States following a cartel meeting in 

Houston Texas that had been secretly recorded 

by U.S. authorities. They were allowed to return 

to the UK as part of a plea agreement with the 

U.S. Department of Justice, which saw them plead 

guilty to cartel behaviour upon their return to the 

U.K. 

Criminal Penalties for the 

Violation of Competition Rules 

62 63

Other jurisdictions 

Most of the introduced criminal sanctions either 

for the most severe violations of cartel rules 

or for specific cartel cases such as bid-rigging. In 

Estonia competition offences became criminal offences 

in 2002, Hungary have introduced criminal 

sanctions in 2005 and many other countries 

followed the trend the last four years, recent 

examples being the Czech Republic, Latvia and 

Slovakia. To date, the only actual invocation of 

criminal sanctions and procedures has taken place 

in Estonia where Court of Appeal convictions in a 

cartel case concerning consultancy services were 

appealed to the Supreme Court where they were 

dismissed. This was yet another case in which 

charges for possible competition law convictions 

have failed due to difficulties in attributing the 

conduct of employees to the company concerned. 

Custodial sentences also have been imposed 

on cartel members in other countries such as 

Canada and Israel, and there is the risk of imprisonment 

in a number of other countries, such as 

Austria, Brazil, France, India, Japan, Korea, and 

Russia. Despite this, criminal liability for cartel 

conduct is not yet universal. As stated above, 

there is no criminal sanction under EU law, and 

even large economies such as China and Germany 

generally do not impose prison sentences on cartel 

members. However, importantly, this does not 

protect the cartelist from imprisonment anywhere 

as where the effects of a cartel cross national borders, 

cartelists may find themselves subject to extradition 

and prosecution in a jurisdiction where 

cartel conduct is punished with prison time. 

The United States has traditionally led the 

way in locking up executives convicted of fixing 

prices and other hard-core anticompetitive conduct. 

Prison sentences for cartel behaviour are in 

the U.S. an established and everyday deterrent. 

In 2007 alone, defendants in cases brought by the 

U.S. Department of Justice (DOJ) were sentenced 

to an aggregate 86 years in jail. Cartelists face a 

maximum of 10 years in jail and/or a $1 million 

fine. 

The relevance of such criminal 

penalties to the Balkans 

Depending on where the effects of a cartel 

cross national borders, Balkan cartelists may find 

themselves subject to extradition and prosecution 

in a jurisdiction where cartel conduct is punished 

with prison time. This is increasingly true given 

that Balkan countries that are party to an implemented 

Interim Agreement or Stabilisation Agreement 

with the EU are “assessed on the basis of 

criteria arising from the application of the competition 

rules applicable in the Community” where the 

alleged cartelist’s activities might have an effect 

on trade between the Community and their EU 

candidate country of origin. 

Criminal penalties for the violation of competition 

rules is currently a hot topic in Serbia 

seeing as at the beginning of November 2010 the 

State Prosecutor commenced a criminal procedure 

against Serbia’s largest milk producer – Imlek for 

its alleged abuse of dominant position. In Serbia, 

pursuant to Article 232 of the Serbian Penal Code, 

a responsible person of a legal person that provokes 

a market disorder by abusing a monopolistic 

or dominant position or by concluding a monopolistic 

agreement, as well as a responsible person of 

a legal person that places that legal person in a favorable 

position allowing it to economically benefit 

from such position or allowing another person 

to economically benefit from it or provoking in 

such a way damage to other market participants, 

consumers or service users, shall be sanctioned by 

an imprisonment from six months to five years 

and by a pecuniary fine. However, such a criminal 

procedure, especially for an abuse of a dominant 

position is extremely unusual, especially given the 

difficulty that would be involved in proving such 

an offence beyond reasonable doubt. This will invariably 

raise a few eyebrows in the world of competition 

enforcement and it remains to be seen if 

this criminal procedure will run its course. 

64 

65

Since the beginning of the twenty-first century, 

as a key step towards EU integration, the 

South-East European jurisdictions have been enacting 

competition laws in order to follow their 

European counterparts. Slovenia was one of the 

first countries from the region which enacted its 

modern competition law in 1993, then followed 

Croatia (1995), Macedonia (January 2005), Bosnia 

and Herzegovina (July 2005), Serbia (September 

2005), and Montenegro (January 2006). 

Even though there are certain differences 

among the regional competition regulations, notably 

with the merger control thresholds; the legal 

framework in the area of cartels and the abuse of 

European Competition Network, even before the 

enactment of “modern” competition legislation. 

For example, Serbia’s Antimonopoly Commission, 

created in 1996 under legislation which gave it essentially 

no enforcement powers, still participated 

in these bodies. Primarily, cooperation has been 

taking place with their Central European members. 

On the other hand, since their establishment, 

the regional competition authorities are entering 

into cooperation agreements between each other 

too. The Serbian Competition Commission signed 

a memorandum of understanding with both Hungary 

and Austria. Bosnia and Herzegovina has 

agreements with each of Turkey, Bulgaria, Macedonia 

and Croatia. Macedonia has entered into the 

agreements with the Albanian, Croatian and Bosnian 

competition authorities. 

It appears that, since the enactment of more 

modern and EU harmonised competition laws, the 

regional jurisdictions have tried to follow the respective 

competition regulations from the Central 

Europe countries, first of all from Germany and 

also Austria. Bearing in mind the traditional links 

among the European continental legal systems, 

the basic principles from the Austrian, German 

and Hungarian competition laws have been implemented 

into the more recent draft laws of the 

South-East European countries. 

A confirmation of the close cooperation 

among the regional competition authorities and 

the Central European competition law systems 

which are highly developed was the drafting of 

the new Serbian Competition Law which was prepared 

with the close cooperation and assistance 

of the Central European competition authorities, 

mission, the Serbian Ministry of Trade, Deutsche 

Stiftung für Internationale Rechtliche Zusammenarbeit 

(German Foundation for International 

Legal Cooperation) and the Technical Assistance 

to the Commission for Protection of Competition 

(ACPC). The Project Manager of the ACPC was Mr. 

Andrej Plahutnik, former Director of the Slovenian 

Competition Authority. 

Not only are the new regional competition 

laws following the basic principles and provisions 

of the Central European competition systems, but 

it also appears that the practice of the regional 

jurisdictions is following the case law of the European 

Commission and the European continental 

jurisdictions. 

Contrary to the British Office of Fair Trading 

(OFT), which is trying to promote competition 

awareness and the protection of consumer interests 

through the publishing of brochures, the 

production of various publications outlining and 

explaining competition and consumer protection 

information, and through its permanent communications 

and cooperation with undertakings and 

businesses; it seems that the Central European jurisdictions 

have developed competition awareness 

through the initiation of specific cases against undertakings 

that have infringed competition provisions. 

Based on the above it appears that the regional 

competition authorities are following the 

practice of the Central European competition authorities, 

rather than those of the British OFT. The 

regional competition authorities are not regularly 

organising seminars on competition awareness 

for the wider public; nor are they are not issuing 

Serbia and in Croatia where each jurisdiction have 

enacted new competition laws in 2009, under 

which their respective competition authorities are 

now able to impose fines directly for infringement 

of competition law, without the commencement 

of court procedures. Without such a tool, the local 

competition authorities could only have confirmed 

the occurrence of a restriction or the distortion 

of competition regulations, but no direct 

fine could have been imposed against the infringing 

parties. Since the enactment of the new laws, 

one can expect that the competition authorities 

in both Serbia and Croatia will use all of their resources 

to identify competition infringements and 

to finally sanction the infringers. 

Among the regional competition authorities, 

it appears that the Competition Council of Bosnia 

and Herzegovina has applied the competition 

law rules in a strict manner, particularly in case 

of late merger filings or implementation of mergers 

without clearance. The Competition Council 

of Bosnia and Herzegovina, contrary to the other 

regional jurisdictions, has imposed the largest 

number and the highest amount of fines for the 

implementation of mergers without prior clearance 

or for late filings. Based on their practice, all 

of the companies involved in relevant transactions 

in Bosnia and Herzegovina have to seriously consider 

whether there is a mandatory merger filing 

required in order to avoid any potential fines from 

the Competition Council. The strict implementation 

of the competition law in Bosnia and Herzegovina 

has shown that imposing of fines can lead 

to the significant awareness of the existence of a 

competition authority and its policy. 

The Cooperation of South-East 

European Competition Authorities 

with German, Austrian and 

other ECN Authorities 

a dominant position in the regional laws has been 

more or less copied from the European Union 

competition laws and regulations. 

The regional competition authorities have 

had constructive communication channels with 

the International Competition Network and the 

first of all Slovenia (Urad Republike Slovenije za 

varstvo konkurence) and Germany (Bundeskartellamt). 

The new Serbian Competition Law, that was 

enacted in May 2009 and which came into force 

in November 2009, was drafted by a team of legal 

experts from the Serbian Competition Com- 

many competition brochures or similar publications. 

Accordingly it may be expected that the regional 

competition authorities will try to develop 

the competition awareness through concrete cases 

against specific undertakings that are breaching 

competition law. This is particularly likely in both 

66 67

Statistical Overview of the 

Regional Competition Authorities 13 

13 Please note: Montenegrin Competition Authority, the Directorate 

for Protection of Competition, is not included in the ranking 

due to the lack of available public data on their work. 

68 69

70 71

Global Trends 

72 73

Introduction – 

Everyday business reality 

In the normal course of business the flow of 

information between undertakings is an everyday 

commercial reality. Making important investment 

and other business decisions without feeling the 

pulse of the market would not be possible, or, it 

would resemble the itinerary of a pilotless Cessna. 

Every day company managers and salespeople 

browse through their competitors’ websites, spend 

hours of every day looking at their ads, ventures, 

price lists. Many successful companies are built on 

business models which involve the collecting and 

processing of information on one’s competitors. 

The same goes for suppliers and customers. The 

information flow is an important part of competition, 

a catalyst of a sort, ensuring that when one 

coffee maker starts promoting lower prices, others 

follow suit. 

Then, many companies share information actively 

between themselves, this is most commonly 

done under the aegis of trade or industry associations. 

Some forms of information exchange of 

this type can further strengthen the competition 

process or contribute to general economic effectiveness 

without obstructing competition process. 

However, sharing too much information or 

sharing a certain kind of information, especially 

between competitors, may fall foul of Article 101 

of the Treaty on the Functioning of the European 

Union (TFEU) and hence expose an undertaking 

to potentially large competition fines or even 

criminal sanctions for individuals. It is therefore, 

in the companies’ best interest to clearly identify 

the line between information that is considered 

benign or even pro-competitive and the information 

that will have an adverse effect on competition. 

Although not expressly governed under the 

current EU regime on horizontal agreements, the 

European Commission and European courts have 

provided significant guidelines on information exchange 

over the years through case law. The information 

exchange, however, will soon be expressly 

regulated under the new Horizontal Guidelines 

which will replace the current Guidelines and are 

expected to come into effect in 2011 together with 

the new Regulations on research & developments 

and specialization agreements. 

Pro-competitive effects – 

Benefits for consumers 

Information exchange may take various forms. 

It may be done directly (e.g. sharing data between 

competitors themselves, through a third party or 

a trade association) or indirectly (e.g. sharing data 

through common suppliers, retailers, involvement 

of market research organizations or through publications 

made on a group website). 

Generally speaking, the more informed market 

participants are the more effective competition is 

likely to be, especially if the information shared 

concerns new market opportunities or technological 

developments. Therefore, sharing information 

can undoubtedly have a pro-competitive influence 

on the market via intensifying competition 

and providing significant efficiency gains which 

will further lead to a better quality of product, 

lower prices and the promotion of innovation. 

Consumers are able to make informed decisions 

about their purchases. The benefits are obvious. 

Anti-competitive effects – 

Crossing the line 

There are instances, however, where the exchange 

of market information is likely to result 

in spreading an awareness of market strategies 

and important business decisions of competitors. 

This can consequently have restrictive effects on 

competition by creating tacit or explicit collusions 

between companies. By increasing transparency 

on important competition parameters such 

as price, quantity, sales or customers, companies 

may coordinate their behaviour even without an 

explicit anti-competitive agreement. Information 

exchange, also, makes it easier for participants of 

an anti-competitive practice to monitor adherence 

and sustainability of already formed collusion. In 

its most severe form, information exchange may 

lead to the formation of cartels. 

The Commission has expressed its view on 

information exchange in relation to maritime 

transport services, where it stated: “an exchange 

of information might constitute an infringement 

of Article 81 of the Treaty in its own right. This 

situation arises when the information exchange 

reduces or removes the degree of uncertainty as 

to the operation of the market in question with 

the result that competition between undertakings 

is restricted”. 

Furthermore, particularly sensitive are information 

on prices the sharing of which may 

Information Exchange 

74 75

facilitate the coordination of competitors’ market 

conduct resulting in price fixing. Price fixing 

should however be distinguished from parallel 

pricing. In Ahlstrom Osakeyhtio and others v 

Commission (“Wood Pulp II”) case the European 

Court of Justice found that the system of quarterly 

price announcements by a substantial number 

of producers of bleached sulphate wood pulp 

did not amount to a breach of Article 101 of the 

TFEU. The Court explained that “the communications 

to users constitute in themselves market 

behaviour which does not lessen each undertaking’s 

uncertainty as to the future attitude of its 

competitors. At the time when each undertaking 

engages in such behaviour, it cannot be sure of 

the future conduct of others”. The fact that price 

announcements coincided in time was attributed 

to the natural degree of transparency of the market 

rather than an anti-competitive behaviour of 

pulp producers. 

Factors to be taken into account 

Whether the competition is being diminished 

or enhanced will usually depend on the type of information 

that is being exchanged. Purely historic 

information, information already in the public 

domain or merely statistical, market research data 

will not normally have an appreciable effect on 

competition. Similarly, the exchange of data that 

is sufficiently aggregated via combining a number 

of independent undertakings so that it is not possible 

to identify individual competitors will not in 

principle infringe competition law, unless it is possible 

to disaggregate such information. 

The European Commission has, also, taken 

into account the structure of the market in question. 

In the United Kingdom Agricultural Tractor 

Registration Exchange case the deciding factor 

in finding that the information exchange on 

market shares and volume of retail sale between 

members of the trade association amounted to 

an infringement of Article 101, was the fact that 

the market was concentrated, i.e. only four companies 

accounted for 80% of the total sales. The 

Commission stated that “the exchange restricts 

competition because it creates a degree of market 

transparency between the suppliers in a highly 

concentrated market which is likely to destroy 

what hidden competition there remains between 

the suppliers in that market on account of the risk 

and ease of exposure of independent competitive 

action… Uncertainly and secrecy between suppliers 

is a vital element of competition in this kind of 

market. Indeed active competition in these market 

conditions becomes possible only if each competitor 

can keep its actions secret or even succeeds 

in misleading its rivals”. In Wirtschaftsvereinigung 

case, the Commission again stressed that the market 

was highly concentrated and had high barriers 

to entry. 

In the less concentrated, highly competitive 

markets, the increased transparency due to the 

information exchange would actually intensify 

competition as market participants are able to adjust 

their conduct without being able to actually 

predict their competitors’ behaviour. It is therefore 

necessary to examine the market structure 

before making a decision on potential effects of 

information exchange. 

Finally, the risk of breaching competition law 

is greater if the information is being exchanged 

between current or potential competitors. Sharing 

certain information between supplier and distributor 

for example is not only permissible but 

sometimes even necessary if they are to reach an 

agreement. Nevertheless, competition breaches 

between undertakings operating on a different 

level of production are possible when, for example, 

information exchanged is used for fixing 

distributor’s resale prices, thus suppliers and distributors 

should be wary as well. 

New Regulations and Guidelines 

on horizontal agreements 

The European Commission has published draft 

Regulations and Guidelines for the assessment of 

cooperation agreements entered into between 

competitors (“horizontal agreements”). The current 

EU legal framework on horizontal agreements 

includes: 

• EC Regulation No. 2659/2000 on research 

and development agreements; 

• EC Regulation No. 2658/2000 on specialization 

agreements; and 

• the accompanying “Horizontal Guidelines.” 

Public consultation conducted in 2008/2009 

on the functioning of the aforementioned rules on 

horizontal agreements concluded that whilst the 

rules worked well in practice, there was a need to 

update them and provide further clarification on 

some complex issues. Information exchange, in 

particular, will be expressly addressed in the new 

Guidelines. The Guidelines seem to suggest somewhat 

stricter approach to information exchange 

whereby even publicly available information may 

infringe Article 101 if, for example, it would be 

difficult, timely or more expensive for companies 

unaffiliated with the information exchange to 

obtain the same data. By and large, however, the 

new Guidelines follow existing case law and merely 

clarify and codify it with the aim of enhancing 

legal certainty in an area of significant practical 

relevance to market participants. 

The basic idea behind the revised rules, 

aligned with more economic approach taken by 

the Commission, is to allow certain degree of cooperation 

between competitors where such cooperation 

would contribute to economic welfare 

without infringing competition. The Commission 

has recognised that the effects of information 

exchange may be anticompetitive as well as precompetitive 

depending on the prevailing circumstances 

of each particular case. It is ultimately up 

to the court to balance these effects on the caseby-case 

basis. 

The new Guidelines are expected to come into 

force in 2011. Whilst they are not binding on the 

European courts, the European Commission is in 

practice bound to apply its own guidelines in order 

to ensure consistency and legal certainty in 

its decisions. 


Drawing the line between competitively 

harmless and anti-competitive exchanges of confidential 

information is not always an easy task to 

do. It depends, in particular, on the characteristics 

of the information exchanged, the potential economic 

impact it may have on the relevant market, 

the structure of the market and to whom it has 

been disclosed. Although it may be argued that 

the information exchange between competitors is 

indicative of collusion, it will not automatically be 

pronounced anti-competitive. Case-by-case analysis 

is necessary. A rule of thumb, however, is this: 

“The more valuable to a company’s commercial 

policy the information being exchanged is, the less 

likely it is that it should be shared” 14 . 

14 http://www.out-law.com/page-9149 

76 

77

Changes in competition law would criminalize 

a wide range of currently legal conduct. 

By Frank L. Fine 

Brussels 

The European Commission is seeking to 

drastically expand its power to fine companies 

for their participation in so-called “information 

exchanges,” a form of cartel under EU competition 

law involving the communication of sensitive 

business information between competitors. 

The commission’s new cartel-enforcement powers 

were revealed earlier this year in its draft Horizontal 

Guidelines, which are due to enter into force 

next January. These changes would criminalize a 

wide range of currently legal, and in some cases 

innocuous, conduct. 

This commission has already been turning the 

screw on companies that transmit sensitive business 

information to their competitors, such as intended 

future prices or output. In June, the commission 

handed down a cartel decision involving 

producers of bathroom fittings and fixtures. This 

case relied heavily on their exchange of intended 

future prices. One of the producers, Ideal Standard, 

was fined EUR 326 million. Similarly, in the 

commission’s pending investigation of airfreight 

carriers, the commission’s case depends largely 

upon the alleged exchange of carriers’ rates and 

surcharges. 

The commission argues that by engaging in 

such exchanges, competitors create “artificial 

market transparency.” It is seen as anticompetitive 

for competitors to “announce” to each other 

their future prices, for example, because doing is 

seen as an invitation to collude on prices. Even the 

communication of one’s recent prices is viewed as 

inviting future collusion. 

The draft guidelines will raise the stakes in 

several ways: 

First, the commission will seek to determine 

whether the information exchanged is equally accessible 

to everyone, including customers. If not, 

then the commission may consider the exchange 

to be illegal. For example, let’s say that independent 

service station owners in greater Frankfurt 

regularly let each other know of their intended 

prices increases. The commission would claim that 

since customers need to visit each and every service 

station in order to apprise themselves of the 

price increases, they have less access than the station 

owners to the price announcements. 

The draft guidelines’ test of “equal access” is 

plainly more aggressive than the current threshold 

of whether the information concerned is in the 

public domain – that is, publicly available. Under 

the present test, if a copper producer posts its future 

prices on its own website or on CNBC before 

communicating them to a competitor, or furnishes 

the information to a regulator, the company has 

a valid defense: the information was previously 

in the public domain. Under the new test, this 

defense would disappear. The commission would 

argue that consumers do not have equal access to 

the information – consumers’ access would depend 

upon 

Changes in competition 

law would criminalize a wide 

range of currently legal conduct. 

Their prescience (or plain luck) in clicking 

onto the company website after the price announcements 

is posted, watching CNBC when the 

announcement is made there, or finding the information 

as filed with the regulator. 

Nor will there be a safety net for competitors 

in exchanging purely historical information with 

each other. The draft guidelines will expect producers 

to determine whether the information is at 

least several times older than the “average length 

of contracts in the industry.” But what types of 

contracts? And in what industry segments? The 

draft guidelines provide no answers to these questions. 

And how would the company determine the 

average length of such contracts without consulting 

with its competitors, which the commission is 

plainly discouraging? 

Similarly, under the draft guidelines, the collection 

and publication of aggregated company 

data would not necessarily sanitize it. If the industry 

is concentrated, say limited to 5-10 producers, 

the commission might argue that the publication 

of aggregated sales in certain territories would enable 

producers to discern their competitors’ sales. 

More disturbingly, independent market-research 

companies, industry analysts and consultants, 

and even journalists, are also targeted by 

the draft guidelines. This is because the guidelines 

prohibit “indirect” information exchange 

resulting from third-party dissemination of sensitive 

information – that is, even without the 

would potentially include the consultant, the LCD 

manufacturers whose information was reported, 

and those producers who refused to provide their 

own data, but had access to the information of 

those reporting it. 

The commission is sending a clear message: 

It doesn’t want competitors talking to each other 

about much more than their golf handicaps. 

However, the commission’s draft guidelines 

are unnecessarily vague and are not narrowly tailored 

to meet their intended objective. It will be 

difficult for manufacturers to determine, without 

the assistance of antitrust counsel and economists, 

what information they can legitimately 

share with each other, and similarly, for consultants 

and other third parties to determine what 

company or industry data they can legally publish 

or broadcast. The commission should have specified 

precise circumstances in which “indirect” 

information exchanges would be deemed illegal, 

at least requiring strong evidence that the “third 

party” had been exploited by a manufacturers’ 

cabal. 

The commission’s new rules will put a chilling 

effect on the exchange or publication of information 

that is positive for the economy, and which 

present no antitrust risk whatsoever. There is still 

time for the commission to consider the adoption 

of rules that are fair, transparent and underfriendly. 

Mr. Fine is director of 

EC Competition Law Advocates in Brussels. 

Brussels’ Antitrust Revolution 

direct communication of sensitive information 

between competitors. If an industry consultant 

published up-to-date information, for example, 

on LCD producers’ sale and customers, the commission 

could find that the consultant facilitated 

an illegal information exchange. The “cartel” 

This article first appeared in the Wall Street 

Journal on 4 August 2010 and has been 

reproduced with their kind permission. 

78 79


The advent of the online economy has fundamentally 

changed the way almost everybody 

thinks about product markets, sales, consumers 

and competition regulation. Since its inception, 

the online marketplace has developed at an astronomical 

pace and the Internet has been a major 

economic and social force for over twenty years 

now. The Internet has resulted in terms such as 

tagging, social networking, online video streaming, 

and blogging becoming everyday words and 

phrases, phrases that if used just a decade or so 

ago, would have invariably been greeted with a 

confused look or a scratch of the head. 

Likewise, the “bricks and mortar” type retail 

market that was considered the norm 20 years 

ago, has been increasingly eroded by the facile, 

easy to use, comparative friendly and commercially 

exploited online marketplace. Twenty years 

ago as a child growing up in Galway, Ireland the 

author decided that he needed a new CD for his 

tenth birthday. Upon checking the prices in the 

three main music stores in the city centre, there 

was little in the difference. A quick phone call to 

an Aunt in Dublin to double-check the price of the 

preferred model produced a similar price quote. In 

the end the author opted to purchase his music 

album in one of the long established city centre 

record stores, safe in the knowledge that he had 

conducted his due diligence and valiantly shopped 

around for the “best price in town”. Today, such 

an approach would seem pretty old fashioned, the 

music store in question is long since gone, and a 

ten year old Galwegian child would today most 

better informed about product attributes, availability, 

and competitive pricing than ever before. 

A product once ordered, will most likely be 

shipped directly to the consumer from a stockpile 

located at the point of manufacturing, (further reducing 

the cost and in most instances), and from a 

manufacturer that is in many cases cutting out the 

middleman. In short, things have changed – a lot. 

In order to quantify the size of this shift, one 

only has to look as far as the United Kingdom. In 

an October 2010 report carried out by the Boston 

Consulting Group and commissioned by Google 15 , it 

was found that online business in the UK is now 

worth £100bn a year with internet revenue making 

up 7.2 per cent of the UK’s gross domestic product. 

This highlights the marked increase in the Internet 

economy and its impact on the ‘regular’ economic 

figures of one of the EU’s more significant member 

states. Furthermore, European online commerce 

saw a 37 percent increase in 2007, to $197 billion 

and revenues are expected to reach $406 billion by 

2011 16 . Unsurprisingly, there has been a serious push 

on the part of the European Commission (‘Commission’) 

in relation to big technology companies and 

competition regulation due to the overriding necessity 

to provide for a level playing field. This is in no 

small part down to the single market and the current 

(and projected) value of Internet sales to the GDP of 

EU member States. These developments are a serious 

indicator of things to come for Balkan countries, 

both from a regulatory and economic point of view 

especially as the quality of Internet availability increases 

and as Balkan markets further open up with 

the implementation of both Stabilisation Agreements 

and Interim Trade agreements with the EU. 

Europe and the online economy – 

a journey down an exciting 

likely order his or her preferred electronic item 

online from iTunes or eBay having conducted a 

price comparison with a host of other electronic 

goods providers. In reality, in recent years, consumer 

reliant businesses have had to face up to 

the reality that the general public is now much 

15 The Connected Kingdom, How the Internet is Transforming the 

UK Economy - October 2010 

16 Damien Dunne, Lisa Fretwell, Jeff Loucks, and Lindsay Parker, 

“Third Annual Cisco IBSG E-commerce Survey: Mobile Emerges 

as Growth Channel for Retail.” Cisco Internet Business Solutions 

Group May 2008. 

80 81

Policing competition in the online 

marketplace from an EU perspective. 

Today, Google provides the lion’s share of online 

advertising and marketing services in both 

Europe and the United States, meanwhile Apple 

has control over the EU’s online musical downloading 

world. These online giants have arguably 

obtained monopoly status in some geographic online 

markets. So far Microsoft and Intel have been 

the most high profile victims of the Commission. 

In 2009 Computer chipmaker Intel was been fined 

a record €1.06bn fine by the Commission for anticompetitive 

practices. It dwarfed the €497 million 

fine levied on Microsoft in 2004 for abusing its 

dominant market position. The Commission found 

that between 2002 and 2007, Intel had paid manufacturers 

and a retailer to favour its chips over 

those of the company Advanced Micro Devices. It 

was always likely that anticompetitive behaviour 

from such monopolistic companies would result in 

at least a few competition regulation issues and 

they haven’t disappointed. In an ever expanding 

market, where the market develops and changes 

at an exponential rate, national competition authorities 

and the Commission are forever playing 

catch up in a new digital frontier not unlike a 

sheriff struggling to keep order in an unruly frontier 

town in old Wild West. 

Historically, such was (and is) the pace of 

change in the online market place that the regulators, 

in this instance the Commission can barely 

keep up with developments. Such was the case 

that when Microsoft lost a high profile appeal 

(against the abovementioned fine) against the 

Commission in September 2007, the decision in 

this particular dispute felt distinctly like ‘old news’ 

when handed down. The Commission’s competition 

watchdog had accused Microsoft of shutting 

out rivals in a dispute about media players resulting 

from Microsoft’s bundling of Windows Media 

Player into the Windows package, a practice 

which rivals complained was destroying the market 

for their own products. Microsoft had bundled 

its own media player with its Windows operating 

system, effectively giving it away for free. That, 

it was argued, undermined the business of rivals 

like Apple and RealNetworks. The €497 million 

fine was upheld, a figure that might appear to be 

somewhat punitive, however given Microsoft’s 

annual profits, was little more than a solid slap on 

the wrists. Ironically, Microsoft’s arch-rival Apple, 

by the time the decision had been handed down 

was (and still is) dominating the European market 

for music downloads with its very own iTunes 

software. On 27 February 2008, the EU fined Microsoft 

an additional €899 million for failure to 

comply with the March 2004 antitrust decision. 

This represents the largest penalty ever imposed 

in 50 years of EU competition policy. 

Strangely enough, Apple was the offender of 

choice in January 2008 17 , when the Commission 

ended an antitrust investigation into Apple after 

the company agreed to reduce the price of music 

downloads from its iTunes website in the U.K. 

The background to this was that the online iTunes 

Store had presented different content and prices 

to customers in different European countries. In 

particular, the standard price for a track in the UK 

iTunes Store had been set at €1.17, compared with 

€0.99 in Germany, France and other Euro-zone na 

tions. However, as one Apple related issue was 

resolved, another one invariably raised its head. 

The Commission, next raised questions regarding 

the reason as to why services such as iTunes were 

available in some European markets but not others 

18 . Interestingly, Apple stated that if iTunes was 

readily able to license rights on a multi-territorial 

basis from publishers and collecting societies, it 

would consider making its content available to all 

European consumers, including those in EU countries 

where iTunes is currently not available. iTunes 

observed that, in Europe, music service providers 

needed to clear various rights from country to 

country. It transpired that the overwhelming number 

of negotiation partners and the lack of information 

as to who owns which rights were amongst 

the biggest problems for iTunes when it came to 

achieving a pan-European iTunes store as opposed 

to different stores for differing national markets 19 . 

Similar licensing cost factors were also cited for 

the price discrepancy issues surrounding downloadable 

tracks in the UK. So on the face of it, it 

appeared that Apple, with its dominant position 

on the online music download market, was taking 

advantage of such a position for its own benefit 

to the detriment of others, and although that is 

not necessarily completely untrue, other underlying 

and mitigating factors also played an important 

contributing factor in such practices. It would 

appear that the Commission is increasingly taking 

these factors into account when opening these 

investigations in order to arrive at equitable and 

speedy resolutions that will ultimately improve 

competition in the single market for EU citizens. 

More recently, Apple have introduced crossborder 

warranty repair services within the EU/ 

EEA and have announced that it has removed 

restrictions on the development tools for iPhone 

apps. These actions were a direct response to the 

fact that the Commission in the Spring of 2010 

had commenced in parallel two preliminary investigations 

into Apple’s iPhone policies. Apple 

had in place a “country of purchase” rule, which 

made a repairs service available only in the country 

where the iPhone was purchased. The Commission 

was investigating whether or not this 

practice could amount to territorial restrictions to 

essentially put off EU consumers from purchasing 

iPhones outside their country of residence and 

thereby partitioning the market. Secondly, a decision 

to restrict the terms and conditions of Apple’s 

licence agreement with independent developers 

of iPhone applications (apps), requiring the exclusive 

use of Apple’s native programming tools 

and approved languages when writing iPhone 

apps was being applied. The Commission was concerned 

that this could ultimately have prevented 

competition from devices running platforms other 

than those of Apple. Accordingly, following Apple’s 

policy changes, on the 27 October 2010, The 

Commission announced that it intended to close 

the preliminary investigations into Apple’s iPhone 

policies. 

Global internet giant Google having more 

than 85 20 % per cent of the search engine markets, 

has resulted in many companies expressing 

concerns over its business practices, especially 

its advertising practices. In February 2010, the 

French Competition regulators accused Google of 

18 

Neelie Kroes European Commissioner for Competition Policy 

Making online commerce a reality Closing remarks at Online 

Commerce RoundtableBrussels 17th September 2008, 

SPEECH/08/437 

17 

Antitrust: European Commission welcomes Apple’s announcement 

to equalise prices for music downloads from iTunes in Europe 

IP/08/22 

Brussels, 9th January 2008 

19 

Online Commerce Roundtable Report on Opportunities and 

barriers to online retailing, 2008 http://ec.europa.eu/competition/consultations/2009_online_commerce/roundtable_report_en.pdf 

20 

NetMarketShare statistics for October 2010: http://marketshare.hitslink.com/search-engine-market-share.aspx?qprid=4 

82 83

abusing its dominant position in the online advertising 

market, and of discriminatory treatment, 

after breaking off Navx’s (manufacturers of speed 

camera detection technology) AdWord contract 

in November 2009. Google’s AdWords product is 

its main source of revenue. Companies apply for 

the use of keywords through a bidding process for 

their link to appear next to or above the results 

generated by the search terms. Google, since the 

French authorities’ intervention in October have 

since committed to clarifying the navigation devices 

for which advertising is authorised or prohibited. 

It will also improve the information available 

on modifications to AdWords content policy, 

and it will clarify any issues that could lead to the 

suspension of an advertiser’s account. However, 

Google remains under scrutiny from other European 

authorities and Competition Commissioner 

Joaquín Almunia affirmed in an October 2010 

speech that the commission is still reviewing three 

separate complaints against Google made in February 

by price comparison website Foundem, legal 

search engine Ejustice.fr and the consumer review 

site Ciao. 

In January 2009, the Commission announced 

that it was investigating the bundling of Internet 

Explorer with Windows operating systems from 

Microsoft, saying “Microsoft’s tying of Internet 

Explorer to the Windows operating system harms 

competition between web browsers, undermines 

product innovation and ultimately reduces consumer 

choice 21 .” In response, Microsoft announced 

that it would not bundle Internet Explorer with 

Windows 7 E, the version of Windows 7 to be sold 

in Europe. Following this, in December 2009, the 

Commission agreed to allow competing browsers, 

with Microsoft allowing users to choose one of 

twelve popular browser products listed in a random 

order. 

So what can we ascertain from the 

above? 

These more recent decisions as illustrated in 

the sample of Commission led investigations and 

cases discussed above demonstrate an increased 

willingness on the part of the Commission to 

avoid lengthy formal investigations and a need 

for formal commitments where it is satisfied that 

a change in business policies removes competition 

concerns. The Competition Commissioner Joaquín 

Almunia recently commented that “the Commission 

can use the competition rules to achieve swift 

results on the market with clear benefits for consumers, 

without the need to open formal proceedings 

22 ”. Accordingly, the opening of clear, concise 

investigations from the outset can alert companies 

that are allegedly infringing EU competition rules 

and allow them to ‘mend their ways’, this way, 

change is effected quickly, EU competition rules 

are adhered to, the market becomes more competitive 

more quickly and ideally the consumer 

ultimately wins. 

Further consequences of the rapid 

expansion of the online marketplace. 

The question has been raised as to what extent 

suppliers can impose restrictions on the distribution 

of their products on the Internet. The 

Commission has taken the opinion that suppliers 

should normally be free to decide on the number 

and type of distributors they want to have in 

their distribution systems 23 . For example distributors 

might only want to sell to groups of stores 

that provide for a uniform sales environment, or 

only to shops in exclusive areas which provide a 

particular quality of service. More generally, suppliers 

may only want to sell to distributors that 

have a physical point of presence, the so-called 

“bricks and mortar” presence where the suppliers’ 

goods can be viewed, touched and tried on. However, 

once a supplier has allowed a distributor into 

its distribution system, it can’t stop a distributor 

from having a website and selling products online. 

New guidelines to the recently adopted regulation 

block exempting agreements between manufacturers 

and distributors for the sale of products 

and services 24 provide examples of restrictions of 

online sales that amount to hardcore restrictions 

of competition, the object of which is to divide 

markets to the detriment of consumers and the internal 

market. The Commission clarifies that such 

restrictions could include an obligation imposed 

on a distributor requiring them to automatically 

re-route customers to the website of another distributor, 

or to terminate a sales transaction where 

the credit card data showed an address outside 

the area to which a given distributor has been assigned. 

However, the Commission clarifies that certain 

vertical restraints on online sales can be justified 

because they eventually benefit consumers. For 

instance a supplier may impose a requirement, as 

for off-line sales, that, in a selective distribution 

21 Antitrust: Commission confirms sending a Statement of Objections 

to Microsoft on the tying of Internet Explorer to Windows, 

MEMO/09/15 Brussels, 17th January 2009 

22 Antitrust: Commission Statement on Apple’s iPhone policy 

changes, IP/10/1175 Brussels, 25 September 2010 

23 Antitrust: Commission adopts revised competition rules for 

vertical agreements: frequently asked questions, MEMO/138 

Brussels, 20 April 2010 

24 Antitrust: Commission adopts revised competition rules for 

distribution of goods and services, IP/10/445 Brussels, 20 April 

2010 

84 85

system, a distributor must not sell online through 

a website that does not meet the agreed quality 

standards, or to unauthorised distributors. In the 

case of exclusive distribution, the supplier may require 

the distributor not to actively target online 

customer groups or customers in areas exclusively 

reserved for another distributor of the supplier. 

However, the exclusive distributor must, however, 

remain free to sell to customers that contact it on 

their own initiative, i.e., “passive” sales” which are 

sales in response to an unsolicited order from customers 

in any territory or group. This is contrasted 

with restrictions on “active” sales, meaning active 

marketing, for example, by targeted advertising, 

customer visits or mail shots. Active sales can be 

restricted into territories or customer groups that 

have been exclusively allocated to other distributors 

or expressly reserved to the supplier itself. 

However, as explained, any restrictions on “passive” 

sales and restrictions on active sales into 

non-exclusive territories or customer groups are 

prohibited. 

So what effect does this have when 

assessing what a relevant market is? 

The main purpose of market definition is to 

identify the competitive constraints acting on 

a supplier of a given product or service. Market 

definition makes it possible, to calculate market 

shares that convey meaningful information regarding 

market power for the purposes of assessing 

dominance. Courts have to figure out what 

kind of market is out there to be monopolised before 

deciding whether the market, once defined, 

has been monopolised by any of the market participants. 

It goes without saying then that without 

knowing which markets are relevant in a competition 

analysis, it will be impossible to decide 

whether a company has an unlawful monopoly. 

Clearly the Internet as a marketplace is not 

what one could call a tangible entity, it cannot be 

located on a map and it cannot be assigned strict 

geographic boundaries like traditional market 

places. Despite this, and depending on the market 

in question, it has the capacity to cover the entire 

planet. Accordingly such facts do not easily lend 

themselves to the making of an analysis of the relevant 

geographical market. This is especially the 

case when it comes to products that are sold both 

online and also at specific “bricks and mortar” locations. 

However despite this, and bearing in mind the 

above guidance from the commission, it would 

appear that in cases considering online sales activities, 

traditional “bricks and mortar” products 

will most likely be included with online products 

when the courts eventually settle on the relevant 

market for competition purposes. In cases considering 

online “new phenomenon” type markets 

such as social networking sites, there will not be a 

traditional high street “version” to consider when 

courts eventually consider the relevant competition 

market. Accordingly the relevant market in 

cases considering traditional “bricks and mortar” 

product online sales are most likely to be defined 

broadly to include online and offline sales, where 

as the relevant market for new phenomenon type 

sites will be confined more narrowly to the internet 

market seeing as that is where they will have 

originated from. 

So how is this relevant to a Serbian 

company with online operations? 

EU competition law is now very relevant to 

Serbian companies with an online presence that 

have cross border relationships with companies or 

customers within the EU. Any Serbian company 

that engaged in questionable cross-border activities 

that may have been subject to competition 

regulation prior to February 2010, are now far 

more susceptible to regulation due to the Interim 

Trade Agreement and the removal of the ambiguity 

surrounding questionable practices involving 

Serbian and EU companies. As well as being answerable 

to the Serbian Commission, a Serbian 

company can now be held accountable, by any 

one of the 27 Member State Commissions depending 

on their activities, as well as the Commission 

itself. In addition, such a Serbian company can be 

subject to the full body of EU competition law and 

practice and not just the body of domestic competition 

legislation. Accordingly, it is advisable 

that Serbian companies or multinationals with operations 

in Serbia maintain strict adherence to the 

domestic competition position whilst also ensuring 

that their behaviour is in adherence with EU 

competition laws too. 

86 87

Active Sale 

Active request or approach to the customers 

or to some specific group of customers who are 

not on the territory reserved for other parties to 

the agreement, entering into individual agreements, 

taking of measures for offering the product 

to those customers, establishment of branch 

offices, store houses or organizing the distribution 

network and advertising on a certain territory 

Affiliated Market Participants 

Two or more market participants affiliated in 

such a way that one or more market participants 

control the other market participant(s), particularly 

through decisive influence over another market 

participant’s management. 

Block Exemption 

Exemption of a group of agreements listed in 

a regulation. 

Collective Dominance 

Two or more independent market participants 

in a dominant position if there is no significant 

competition between them and if their joint market 

share is 50% or more. 

Control 

The possibility to decisively influence the 

business of another market participant(s), particularly 

in following manners: if the controlling 

undertaking has a position of the controlling (parent) 

company, i.e. controlling shareholder; ownership 

or right to use the entire market participant’s 

property or part of its property; based on the 

contractual rights or securities; claims or the securities 

of claims; or based on the conditions of 

business practice determined by the controlling 

undertaking. 

Dawn-raid 

Power for Competition Commission to order 

and conduct searches in business premises, private 

homes and vehicles in the early morning, 

hoping to use the element of surprise and to seize 

potential evidence. 

De-concentration 

Cancellation of an already implemented concentration, 

which can be operated as a split-off, 

sale of shares, cancellation of the agreement or 

performing of any other action which would lead 

to restitution of the status prior to implementation 

of the concentration. 

Dominant Position 

A position on the relevant market of an undertaking 

which has no competition or insignificant 

competition, or that has a significantly better 

position in comparison to the competitors taking 

into account the volume of market share, economic 

and financial power, access to supply and distribution 

markets, as well as legal or factual barriers 

to access for other undertakings to the markets; 

the presumption for existence of dominant position 

is 40% of market share. 

Fee 

Fee for filing of a notification or issuance of 

competition clearance. 

Horizontal Agreements 

Agreements concluded between existing and/ 

or potential market participants doing business at 

the same level of the production chain or delivery 

chain. 

Individual Exemption 

Exemption of an individual agreement or part 

of this agreement from the prohibition if such an 

agreement or part of this agreement shall contribute 

to improving production or distribution, i.e., 

contribute to urging technical or economic development, 

and if it shall provide a fair share of benefit 

to consumers. 

Infringement of Competition 

Acts and activities of economic subjects and 

legal entities and individuals and other market 

participants which can be considered as competition 

violations: agreements which are essentially 

preventing, limiting or disturbing competition; 

abuse of dominant position or concentration, essentially 

preventing, limiting or disturbing competition, 

primarily by establishing or strengthening 

the dominant position on the market. 

Inquiry Proceedings (Phase II) 

The evidence collecting process with a view 

to accurate establishment of facts, especially by 

taking statements from the parties and witnesses, 

conducting expert studies, collecting data, documents 

and belongings, conducting inquiry and 

temporary confiscation of the belongings. 

Judicial Review 

Claim submitted in an administrative dispute 

against the decision of the competition authority 

within 30 days as of receipt of the decision. 

Leniency 

Immunity as well as a reduction of any fine 

which would otherwise have been imposed on a 

participant in a cartel, in exchange for the voluntary 

disclosure of information regarding the cartel 

which satisfies specific criteria prior to or during 

the investigative stage of the case. 

Merger/Concentration 

• Market participants’ status changes; 

• Gaining of direct or indirect control over another 

other market participant or its part; 

• Joint venture 

Merger Notification 

Notification filed with a competition authority 

for approval of concentration. 

Passive Sale 

Responding to requests of the customers located 

on a certain territory reserved for other parties 

to the agreement, including delivery of products 

to such customers, responding should not be 

sequent to active sale. Passive sale considers also 

general advertising in media or on the Internet accessible 

on the territories reserved for other parties 

to the agreement, i.e. customers located on 

that territory, which is a result of development of 

technology or simplicity of the admission. 

Glossary 

88 89

Privileged Communication 

Letters, notifications and other forms of 

communication between a party against whom 

proceedings before the Commission have been 

commenced and its attorney(s) that are directly 

referring to the proceedings. 

Relevant Market 

Market enclosing the relevant market of products 

on the relevant geographic market. 

Relevant Geographic Market 

Territory where market participants take part 

in supply or demand processes and where equal 

competition conditions exist, essentially different 

from the competition conditions that exist in the 

neighbouring territories. 

Relevant Product Market 

Set of products and/or services that are substitutable 

under acceptable conditions for consumers 

of these goods and/or services, especially 

in respect of their feature, usual purpose and 

price. 

Restitution of Damage 

Restitution of damage caused by the acts and 

actions which are considered as the infringement 

of competition, which have been determined as 

such in the competition authority’s decision and 

which are realized in a litigation procedure before 

a competent court. 

Restrictive Agreement 

Contracts, specific provisions of contracts, 

explicit or implicit agreements, consorted practices 

as well as decisions on associations of undertakings 

the object or consequence of which is 

significant prevention, restriction or distortion of 

competition. 

Summary Proceedings (Phase I) 

Administrative proceedings run by the Competition 

Commission if it decides that it is not necessary 

to run inquiry proceedings; decision in the 

summary proceedings is issued by the Head of the 

Commission. 

Threshold for Filing of Merger 

Notification 

Threshold provided for by a competition 

law which identifies under which conditions the 

merger filing is mandatory. 

Unannounced Inquiry (Dawn Raid) 

Sudden examination of the premises and/or 

data, documents and belongings which are to be 

found at such place, of which the party or the 

holder of the premise and belongings shall be informed 

at the moment of carrying out of the inquiry 

at the place of inquiry. 

Undertaking 

All legal and natural persons that participate, 

either directly or indirectly, in a permanent, occasional 

or one-off trade of goods and / or services, 

regardless of their legal status, type of ownership, 

nationality or permanent residence. 

Vertical Agreement 

Agreement between undertakings which operate 

at different levels of production and distribution 

chain. 

Whistleblower 

The first member of the cartel to disclose its 

existence and provide the competition authority 

with evidence of the anti-competitive behaviour. 

A whistleblower usually receives no penalty or at 

least a reduction in fines in countries with the leniency 

programme in place. 

90 91

English 

Serbian 

Competition Authority of Montenegro 

Uprava za zaštitu konkurencije Crne Gore 

Abuse 

Acquisition 

Act of concentration 

Administrative act 

Administrative dispute 

Administrative proceedings 

Affiliated market participant 

Agency 

Agent 

Annual report 

Appeal 

Applicant 

Application 

Approval 

Assessment 

Assignment 

Ban 

Bankruptcy 

Block Exemption 

Branch 

Business name 

Buyer 

Business activity 

Clearance 

Clearing year 

Zloupotreba 

Sticanje 

Akt o koncentraciji 

Upravni akt 

Upravni spor 

Upravni postupak 

Povezani učesnik na tržištu 

Zastupanje 

Zastupnik 

Godišnji izveštaj 

Žalba 

Podnosilac zahteva 

Primena 

Odobrenje 

Procena 

Dodela, prenos 

Zabrana 

Stečaj 

Izuzeće sporazuma po vrstama 

Ogranak 

Poslovno ime 

Kupac 

Poslovna delatnost 

Odobrenje 

Obračunska godina 

Competition Council of Bosnia and Herzegovina 

Competitiveness 

Competitor 

Company 

Compulsory measure 

Concentration 


Consumer 

Control 

Council of the Competition Commission 

Customer 

Dawn raid 

Decision 

Decision-making 

Decisive influence 

Demand 

Distribution network 

Distortion 

Dominant position 

Entrepreneur 

Excerpt from the registry 

Exemption 

Experts’ Department 

Exclusivity 

Konkurencijsko vijeće / Konkurencijski savjet 

Bosne i Hercegovine 

Konkurentnost 

Konkurent 

Privredno društvo 

Prinudna mera 

Koncentracija 

Zaključak 

Potrošač 

Kontrola 

Savet Komisije za zaštitu konkurencije 

Potrošač 

Nenajavljeni uviđaj („prepad u zoru“) 

Odluka 

Odlučivanje 

Odlučujući uticaj 

Tražnja 

Distributivna mreža 

Narušavanje 

Dominantni položaj 

Preduzetnik 

Izvod iz registra 

Izuzeće 

Stručna služba 

Ekskluzivnost 

DICTIONARY 

Collective Dominance 

Competition 

Competition authority 

Competition Commission of Serbia 

Kolektivna dominacija 

Konkurencija 

Institucija ovlašćena za zaštitu konkurencije 

Komisija za zaštitu konkurencije Republike Srbije 

Fee 

Filing 

Final 

Financial statement 

Forbiddance 

Naknada 

Podnošenje (podneska) 

Konačno 

Finansijski izveštaj 

Zabrana 

92 93

Franchise 

Gaining of control 

General partnership 

Horizontal agreement 

Implementation 

Income 

Individual Exemption 

Influence 

Interest 

Interim measure 

Inquiry proceedings 

Joint stock company 

Joint venture 

Law 

Legal entity 

Leniency 

Limited liability company 

Limited partnership 

Limiting 

Market 

Market Participant 

Market share 

Merger 

Merger Notification 

Misdemeanour 

Misdemeanour proceedings 

Natural person 

Offer 

Official Gazette 

Oral hearing 

Overlap 

Parent company 

Party to the concentration 

Pecuniary fine 

Power of attorney 

Prevailing business activity 

Prevention 

Proceedings 

Franšiza 

Sticanje kontrole 

Ortačko društvo 

Horizontalni sporazum 

Primena 

Prihod 

Pojedinačno izuzeće sporazuma 

Uticaj 

Kamata 

Privremena mera 

Ispitni postupak 

Akcionarsko društvo 

Zajedničko ulaganje 

Zakon 

Pravno lice 

Oslobađanje od obaveze plaćanja kazne / 

smanjenje kazne 

Društvo sa ograničenom odgovornošću 

Komanditno društvo 

Ograničavanje 

Tržište 

Učesnik na tržištu 

Tržišni udeo 

Koncentracija 

Prijava koncentracije 

Prekršaj 

Prekršajni postupak 

Fizičko lice 

Ponuda 

Službeni glasnik 

Usmena rasprava 

Preklapanje 

Matično društvo 

Učesnik u koncentraciji 

Novčana kazna 

Punomoćje 

Pretežna poslovna delatnost 

Sprečavanje 

Postupak 

Procurement 

Production 

Profit 

Profit margins 

Protective measure 

Provision 

Public company 

Regulation 

Relevant market 

Relevant geographic 

market 

Relevant product market 

Resolution 

Restriction 

Restrictive agreement 

Revenue 

Sale 

Seat 

Severability 

Share 

Share capital 

Status change 

Statute of limitations 

Strengthening 

Subsidiary 

Substitutable 

Substitution 

Substitute 

Summary proceedings 

Supplier 

Target company 

Tariff rules 

Undertaking 

Value Added Tax (VAT) 

Vertical agreement 

Violation 

Whistleblower 

Nabavka 

Proizvodnja 

Dobit 

Profitne marže 

Zaštitna mera 

Odredba 

Javno preduzeće 

Uredba 

Relevantno tržište 

Relevantno geografsko tržište 

Relevantno tržište proizvoda 

Rešenje 

Ograničavanje 

Zabranjeni sporazum 

Prihod 

Prodaja 

Sedište 

Delimična ništavost 

Udeo, akcija 

Osnovni kapital 

Statusna promena 

Zastarelost 

Jačanje 

Zavisno društvo 

Zamenljiv 

Supstitucija 

Supstitut 

Skraćeni postupak 

Dobavljač 

Ciljno društvo 

Tarifnik 

Učesnik na tržištu 

Porez na dodatu vrednost (PDV) 

Vertikalni sporazum 

Povreda 

Zaštićeni svedok, pokajnik 

94 95

Focus on Competition 2011 - Karanovic & Nikolic

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