Serbia - Karanovic & Nikolic

SerbiaHowever, in the recent Stampa Sistem/Futura Plus case, the Competition Commissionfollowed the basic EU merger control rules that apply to clearances with conditionsand obligations. This was the first case that encompassed negotiations between thecompetition authority and the applicant, and the applicant’s proposal of both structuraland behavioural measures led to the issuance of a merger clearance acceptable to thecompetition authority.In-depth merger control procedure (Phase II)As a general rule, the Competition Commission may initiate an in-depth procedure (i.e.,Phase II or inquiry proceedings) when it finds that the concentration in question raisesserious competition concerns (e.g., if the concentration leads to a significant prevention,limitation or distortion of competition on the relevant market).In addition, the Competition Commission could formally commence an indepthprocedure:a if the parties have not submitted all the relevant data and documents that aremandatory under the respective merger control regulations; andb if the parties to the concentration have seriously opposed interests and, for thatreason, it can be expected that one of the parties (specifically the target) willnot provide all the relevant data and documents for the competition authority’sreview.When the Competition Council commences an in-depth (Phase II) procedure, theapplicant still cannot know what direction the Competition Council’s enquiries duringthe Phase II procedure will take. It is common for the authority to contact the parties’ maincompetitors, their largest suppliers and buyers in order to assess what their expectationsof the concentration in question are (i.e., whether the competitors, suppliers and buyersestimate that their position will be degraded or perhaps improved by the implementationof the concentration).Further, the competition authority may sometimes commence an in-depthprocedure if the target is a real or presumed dominant player. Even though this is stillrare in practice, one should be aware of such possibility even if the acquirer has no or avery limited presence on the local market where the target is presumed to be a dominantplayer (for example, this occurred when Delhaize Group acquired Delta Maxi during in2011).Fees and penaltiesThe applicant is obliged to pay a fee for the issuance of the clearance in summaryproceedings amounting to 0.03 per cent of the total worldwide annual income realisedby the merging parties (capped at E25,000). The fee for the issuance of a merger clearancein the inquiry proceedings is set at 0.07 per cent of the total annual income realised bythe merging parties (capped at E50,000). If the Commission rejects the notification onprocedural grounds, the fee is E500; should the Commission prohibit a transaction, thefee for issuance of such a decision is E1,200.Implementing a concentration that was not notified or not cleared can result ina fine of up to 10 per cent of the total worldwide annual turnover of a company realised376