Serbia - Karanovic & Nikolic

Serbiain the year prior to the start of the proceedings. Late filings may be sanctioned with aprocedural penalty, which is also capped to the same amount.To date, we are not aware of any fine having been imposed in Serbia for notnotifying a merger. However, from the beginning of 2011, the Competition Commissionstarted to impose fines for abuses of dominant position and restrictive agreements (thefines amounted to approximately E40 million; so far, such fines have been imposed solelyagainst domestic companies), and it can be expected that fines for the implementationof mergers without clearance could be soon imposed in Serbia as well in quite significantamounts. In cases of acquisition of sole control, the buyer would be solely responsible forthe filing, and for payment of the fine. In cases of joint control, both acquirers of jointcontrol would be responsible for the filing and payment of the fines.Furthermore, the Commission may cancel an already implemented concentration(‘de-concentration’), which can be effected by way of a split-off, sale of shares, cancellationof the agreement or performance of any other action that would lead to the restitutionof the status prior to implementation of the concentration. The Commission has notimplemented any de-concentrations to date. The Commission may also impose bothbehavioural and structural measures on merging entities in order to alleviate antitrustconcerns. While the former have been used in a few cases in which the Commission issuedconditional clearances, structural measures have never been used in practice, althoughthey were suggested in one case. Furthermore, special sanctions, such as additional finesor non-registration, might be applicable in certain particular sectors (i.e., banking ortelecommunications).The Serbian Criminal Code contains a wide provision that could be used tointerpret a concentration resulting in the creation or strengthening of dominant positionas an ‘abuse of monopolistic position’. In this case, the person responsible for intentionalimplementation of a prohibited concentration could be criminally prosecuted. Themaximum sanction is three years’ imprisonment; however, this provision has never beenused in practice.Judicial reviewResolutions of the Competition Commission are final administrative proceedings. Theparty to the proceedings or a third party with a legal interest may challenge the decisionbefore the Administrative Court of Serbia by initiating an administrative disputethrough filing a claim within 30 days of receipt of the decision, or within 60 days if theappellant did not receive the decision. The appeal does not preclude the enforcementof the decision. However, the Competition Commission can in certain cases postponeenforcement until the Court ruling upon the request of the appellant.The Administrative Court may confirm the decision, annul the decision andreturn it to the Competition Commission for revision, or decide the case itself. TheAdministrative Court must decide the administrative dispute within two months ofreceiving the claim.The Supreme Court of Cassation decides on extraordinary legal remediesagainst the rulings of the Administrative Court. Such a request may only be filed if theAdministrative Court has violated the law or procedural rules where this could haveaffected the outcome of the proceedings.377