Serbia - Karanovic & Nikolic

ivSubstantive assessmentSerbiaWhen deliberating on the permissibility of a concentration, the Competition Commissionparticularly considers the following:a the structure of the relevant market;b actual and potential competitors;c the market position of the parties and their economic and financial power;d the possibility to choose suppliers and customers;e legal and other barriers to entry in the relevant market;f the level of competitiveness of parties;g supply and demand trends for relevant goods or services;h technical and economic development trends; andi the interests of consumers.The Competition Council applies the SIEC test in combination with the dominance test,based on wording that has been transposed from the EUMR. Most often, the authoritywill analyse the level of concentration of the market by relying on the HHI index, andassess the parties’ market power based on the market share information.Despite the SIEC test being an integral part of the assessment toolkit, theCompetition Council in practice initiates Phase II proceedings, discusses remedies andblocks transactions almost exclusively by relying on the dominance test.IVOTHER STRATEGIC CONSIDERATIONSi Voluntary notificationExceptionally, the Competition Commission has the authority to institute an exofficio merger control procedure if an un-notified concentration results in the mergedundertakings having a market share above 40 per cent. The 40 per cent market sharethreshold is not a mandatory jurisdictional threshold (i.e., the parties are not obliged tofile a notification with the Competition Commission if their combined market share inany relevant market exceeds 40 per cent).However, to avoid a situation of an ex post analysis, it may be advisable to notifythe Competition Commission of the intended merger if the parties’ market shares doexceed this threshold (in Serbia). However, since the enactment of the Competition Law,to our knowledge the Competition Commission has not initiated any ex officio mergercontrol procedure where a concentration that has not been notified might have resultedin the parties’ market share exceeding 40 per cent.ii Acquisition of minority shareholdingsSimilarly to the EU regime, an acquisition of a minority shareholding may trigger thefiling requirement provided that the minority shareholder would be able to exercisecertain controlling rights that fall outside the scope of ordinary rights attributed to aminority shareholder. However, while the European Commission would normally relyon its own guidelines (the Consolidated Jurisdictional Notice), the Serbian CompetitionCommission has enacted no such guidelines. Parties normally refer to the ConsolidatedJurisdictional Notice, although it is evident that in certain cases the Competition378