Serbia - Karanovic & Nikolic

Serbianotification of concentration is made in a timely manner, that the acquirer of controldoes not execute its managing rights based on the acquired rights, or that it does soonly for the purpose of maintaining the full value of investments and based on a specialapproval obtained from the Commission.Confidential informationInformation regarding the merger control proceedings may be classified as confidentialand shall not be published by the Commission if the party proves that it shall suffersubstantial damage due to publication of such information. The decisions of theCommission, apart from information classified as confidential, are regularly publishedon its website.Merger clearances with commitmentsSince its establishment in 2006 and up to the very end of 2009, most of the work ofthe Competition Commission encompassed merger filings. Restrictive agreements andabuses of dominant position were very rare. Furthermore, the merger clearance decisionswere very short, simple and without detailed elaborations. The procedure before thecompetition authority usually lasted no longer than one month.However, as the Competition Commission became more experienced (i.e.,regarding the market structures, the main players, and all the actual and potentialcompetition concerns that can arise from the concentrations between the two or moreundertakings), it began to use all of the legal tools that it possesses, including in-depthprocedures, conditional clearances and, finally, prohibitions of concentrations.The competition rules have still not been properly developed within themeaning of merger control rules. There are only very general provisions contained inSerbia’s competition law that enable the Competition Commission to issue conditionalclearances. To date, no guidelines, best practices or model texts have been adopted bythe Competition Commission for the purpose of issuing conditional clearances. For thatreason, merger clearances with conditions and obligations in Serbia are still rare.The first ‘conditional’ clearances in Serbia were issued more than four years ago.In their form, the Competition Commission’s conditional decisions were very similar toits regular (unconditional) clearances. All of the conditional clearances were issued byway of simplified procedures, even though one would expect that an in-depth procedurebe initiated once the competition authority reached the conclusion that conditionsand obligations must be imposed. In those cases, the Competition Commission wouldsimply conclude, at a certain stage of the review process, that the merger filing couldneither be cleared nor prohibited, but rather that certain conditions had to be imposedon the applicant. Such conditions were those that the competition authority found tobe most appropriate in the case in question, and unfortunately usually imposed withoutany consultations with the applicant itself. Among the numerous legal issues inherent insuch approach, the two were most significant:a there were no legal rules that the competition authority should have followedduring the process of the issuance of the conditional clearance; andb the applicants were not aware of the possibility that a conditional clearancedecision could be issued – they found out about such imposed conditions onlyafter receipt of the decision.375