The Merger Control Review 2013 - Serbia Chapter - M&A/Private Equity

I INTRODUCTION

The Serbian Competition Commission is well known locally for its track record of imposing fines for antitrust infringements. In late 2009, a new law came to effect authorising the Competition Commission to impose fines directly; however, no one expected that by 2013 the total amount of fines it imposed would reach E40 million.

Outside Serbia, the Competition Commission is best known for being one of the jurisdictions consistently considered in multi-jurisdictional filings. Despite its relatively small population (around 7 million), Serbia has had a disproportionate number of merger control cases – more than 100 a year on average, since the enactment of the first EU-modelled competition law in 2005. Because of its low notification thresholds, European and global transactions involving at least one party with a material business interest in Serbia need to be pre-notified to the Competition Commission in Serbia.

This experience in dealing with merger control cases has helped the authority develop its capacity and gain a better understanding of how markets work. It is now well equipped to handle the most complex cases and deal with them within a relatively short time frame. Additionally, it has consistently shortened the review period in more straightforward cases.

The Competition Law of 2009 moved the Serbian antitrust regime closer to EU law (the case law of the EU courts, the European Merger Regulation ('the EUMR') and various implementing regulations). The substantive regime is substantially identical to the regime introduced by the first EU-modelled competition law, the Competition Law of 2005. Thus, the current regime mostly meets the standard of review that exists in the EU.

Since 2008, the Serbian competition rules have been formally exposed to the influence and case law of the EU. Under the stabilisation and association agreement ('the SAA') with the EU, Serbia formalised its commitment to harmonise its legislative framework with that of the EU.

The Central European Free Trade Agreement ('CEFTA'), similar to the SAA, envisions the application of EU competition law principles and rules to all matters in which trade among the member countries may be affected. Therefore, while Serbian competition law normally would not apply to sales outside Serbia, the CEFTA rules will, together with the laws of Serbia and the laws of the EU, which the national authorities are obliged to follow. While the Commission considered the CEFTA area as a free-trade zone in its merger review practice, there has been no case law so far regarding competition infringements in cross-border trade between member countries.

The Competition Commission, which is seated in Belgrade, is composed of five members (the head of the Commission and four professional case handlers) appointed by Parliament. It is an independent regulatory body that is authorised to implement the law, and is responsible exclusively to Parliament.

The head of the Commission, inter alia, represents the Commission, signs conclusions on commencement of inquiry proceedings, issues decisions in fast-track procedures and decides on appeals against conclusions issued by the case handlers.

Parties may appeal the Competition Commission's decisions to the Administrative Court, which may either set aside the Commission's decisions or take full jurisdiction over the matter and replace the Commission's decision with its own. The Administrative Court is normally required to test the Competition Commission's findings and hear evidence on the issue, although it rarely takes any such action. The Administrative Court's judgments are final, but the parties may appeal them to the Supreme Court of Cassation, which can only decide on points of law.

Over the years, the Competition Commission has blocked several transactions and has imposed remedies in dozens of other cases. With regard to remedies, it has imposed remedies even in foreign-to-foreign transactions. Previously, such remedies had been more behavioural in nature, but recently it has negotiated more complex structural remedies.

In the summer of 2013, Parliament intends discussing certain amendments, but there are no indications that the notification thresholds will change.

Certain specific rules and regulations, including the occasional deviation from the general competition law regime, are contained in the appropriate sector legislation, for example, banking regulations (specific merger thresholds that concurrently have to be approved by the National Bank), telecom rules (ex ante regulation and special rules regarding significant market power operators), public health norms (maximisation of drug prices), media laws ('prohibited media concentrations') or even local ordinances in certain cases (fixing of local taxi and public transport fares).

II YEAR IN REVIEW

Merger control still represents numerically the most significant part of the Commission's practice, accounting for the majority of its decisions (105 in 2012). Most of these (e.g., around 93 per cent in 2012) resulted in summary decisions, which suggests that the thresholds are too broad under the Competition Law. However, there have been a few Phase II proceedings, which always entailed high-profile local cases, with particular scrutiny applied to the kiosks market, the leading sugar producer and telecom prepaid services. Transactions involving local assets need not, however, be the decisive factors in the estimation of the necessity of an inquiry. Besides market shares, a merger is always evaluated in the light of the effects that it can cause after its implementation, so high market shares do not automatically mean that a merger will be thoroughly investigated or that conditions will be imposed.

The end of 2012 and the beginning of 2013 are noteworthy in the development of the Serbian merger control system. 2012 marked the first year that the Competition Commission issued clearances with commitments (conditional clearances) under the new competition law. One involved the kiosks markets (in seven Serbian cities), while the second referred to the acquisition of a major distributor of telecom prepaid services. In March 2013, the Commission issued another conditional clearance concerning the sugar industry. In all three horizontal mergers concerned, the Competition Commission relied on the EC merger control guidelines, model texts and best practices for behavioural measures and divestiture commitments.

The Competition Commission previously decided in two cases to block concentrations. The first decision (Primer C/C Market) was issued in 2006, soon after the first Serbian competition law came into force. The prohibition decision of the nascent competition authority was surprising not only to the applicant, but also to the whole profession. The case is now pending at the Administrative Court of Serbia, following two competition authority decisions not to allow the merger. However, as the merger has already been implemented, and all the statutes of limitations for imposing potential fines have expired, it is unlikely that a new potential competition authority's prohibition decision will have much effect.

The second prohibiting decision (Sunoko/Hellenic Sugar) was issued by the Competition Commission at the beginning of 2012. The Administrative Court annulled the authority's decision on procedural grounds; the case was reinitiated, and the Competition Commission finally decided to clear the transaction with commitments.

The main reason for disallowing a merger is assumed creation or strengthening of the acquirer's dominant position in the relevant market. However, even though such mergers can raise serious competition concerns, the authority may decide not to prohibit the transaction, but rather to clear the merger with commitments imposed on the acquirer (conditional clearance) or without any commitment whatsoever.

Normally, the prohibition of a merger would take place following an in-depth procedure and after the dismissal of the applicant's offered commitments (conditions and obligations). The procedure is often very complex and burdensome for both the Competition Commission and the applicant. As these are, by their nature, very complicated cases, case handlers will collect a significant amount of documents and information from the parties involved, public sources, parties' competitors, suppliers and buyers. Economic, technical or other experts are sometimes also involved.

i Notable cases

Stampa Sistem/Futura Plus

The first merger clearance with commitments after the enactment of the Competition Law (2009) was issued on 22 November 2012. The transaction involved the acquisition by Stampa Sistem Belgrade of its major competitor in the kiosks market, Futura Plus. The Commission initiated proceedings, during which it concluded that the parties' combined market share in seven Serbian municipalities would be above 40 per cent, which would lead to Stampa Sistem having a dominant position in the seven municipalities.

The Commission imposed a behavioural measure on the acquirer, Stampa Sistem, which is not allowed to increase the number of its kiosks (either owned or rented) in three Belgrade municipalities (Vracar, Savski venac and Zvezdara), and in the four remaining provincial municipalities (Backa Topola, Apatin, Indjija and Becej). The acquirer is also obliged to appoint a monitoring trustee, to be approved by the Commission. The behavioural measure applies for three years.

The commitments can be amended in the event of significant changes in the market; namely, if the acquirer's combined market share in the seven municipalities drops below 30 per cent, the acquirer can require the Commission to amend the clearance decision accordingly. The clearance decision does not specifically provide for the manner in which the decision should be amended, but one would expect that the conditional clearance could be overturned and a decision without commitments could be issued instead, as the parties' combined market share would no longer exceed 40 per cent.

Centrosinergija/Lanus

A clearance with behavioural and divestiture commitments concerning the acquisition of sole control by Centrosinergija d.o.o. Belgrade over Lanus d.o.o. Belgrade was issued on 19 December 2012. The transaction concerned the acquisition by one of the major distributors (Centrosinergija) of prepaid services of two of the three Serbian mobile operators of its major competitor (Lanus). (Centrosinergija is an affiliated company of the above-mentioned Stampa Sistem.)

In this case the Commission, for the first time since its establishment in 2006, imposed a divestiture commitment; Centrosinergija must divest between 3,500 and 4,000 GPRS terminals that provide telecom prepaid services.

The behavioural measure involves the acquirer's commitment that it will implement an 'objective and balanced' policy of rebates towards its sub-distributors. The clearance decision includes specific percentages of rebates that should be implemented for each particular group of Centrosinergija's sub-distributors. The Commission also imposed on the acquirer a duty to appoint both monitoring and divestiture trustees (with the Commission's subsequent approval).

Sunoko/Hellenic Sugar Industry

In March 2013, the Competition Commission cleared the acquisition by the leading sugar producer Sunoko of its major competitor Hellenic Sugar Industry (i.e., the target's two Serbian sugar plants). The Commission imposed both structural and behavioural measures.

The acquirer committed to dispose of one of the target's two sugar factories based in Serbia. The acquirer agreed that it (i.e., its affiliated entities) will not, during the 10- year period from the divestiture, acquire control over the divested sugar plant.

The Commission also imposed behavioural measures on the acquirer including:

every six months (until the liberalisation of the Serbian sugar trade), it must inform the Commission about the company's total volume and value of sale of sugar in both domestic and foreign markets;
inform the Commission of the company's average wholesale sugar price;
provide a review on the investments made in the target company; and
provide information on the effectuated changes in the wholesale prices of sugar applied towards specific categories of customers.

The acquirer must also appoint both monitoring and divestiture trustees (with the Commission's subsequent consent).

III THE MERGER CONTROL REGIME

i Definition of concentration

The Serbian Competition Law defines concentrations in the same way as the EUMR. Essentially, all forms of 'amalgamations' of previously independent undertakings qualify as concentrations. In formal terms, a concentration can result from:

mergers and other status changes;
acquisition of direct or indirect control by one or more undertakings over another undertaking or part of an undertaking;
full functional joint ventures, where full functionality is interpreted similarly to the EUMR's interpretation (e.g., creation of a new undertaking by two or more independent undertakings that will exercise joint control over the new undertaking, but which will be independent from its shareholders and have full access to the market).

The notion of control is practically identical to that used in the EUMR.

The following are not concentrations:

temporary acquisitions of shares by banks and other financial institutions in the course of regular business activities, assuming they intend to dispose of the shares and assuming there is no change of control on a lasting basis;
acquisitions of shares by investment funds, assuming the shares are used only for maintaining the value of the business;
cooperative joint ventures; and
acquisition of control by a bankruptcy administrator.

ii Merger control thresholds

Merger filings are mandatory in Serbia if either of the following two thresholds are met:

the combined annual turnover of all the parties to the concentration realised on the world market in the previous accounting year exceeds E100 million, where at least one of the parties to the concentration had an annual turnover exceeding E10 million in the Serbian market; or
the combined annual turnover of at least two parties to the concentration on the Serbian market exceeded E20 million in the previous accounting year, where at least two of the parties to the concentration each had an annual turnover exceeding E1 million in the Serbian market.

The Competition Law also applies to foreign-to-foreign mergers, in which case the same jurisdictional thresholds apply. Therefore, there is no local effects doctrine prescribed under the Competition Law. The Competition Commission has in many cases thus far examined and issued clearances in foreign-to-foreign transactions. It has taken a very strict and formalistic approach in this respect, and it requires mandatory filing whenever either of the two thresholds is met. Normally, foreign-to-foreign mergers without any competition concerns in the local Serbian market will be processed through a Phase I proceeding.

Additional rules may apply for certain sectors (i.e., banking, insurance, telecommunications and media).

iii Procedure

Filing deadlines

The merger notification must be filed with the Competition Commission within 15 calendar days of the date of entering into the agreement, the announcement of the public offer or the acquisition of controlling shares, whichever takes place first. If the parties do not file in a timely manner, the Competition Commission may impose fines ranging in from E500 to E5,000 for each day of late filing. The filing can be made based on a letter of intent, or any similar document showing both parties' serious intent to enter into the transaction. The Commission has so far been reluctant to accept unilateral declarations or commitments as valid proof of this.

Pre-notification discussions

The Competition Law does not provide for pre-notification discussions with the Competition Commission. However, informal discussions with the authority are possible, although still very rare. The duration of informal discussions would depend on the complexity of the case in question. Any representations made orally by the Commission are not legally binding on them.

Length of review

The length of review depends on whether the Commission decides on implementing fast-track (Phase I) or inquiry proceedings (Phase II). For Phase I, the statutory deadline is one calendar month after filing a complete merger notification. Phase II can only be initiated after the Phase I proceeding has expired; the Commission then has a time frame of three calendar months to issue a decision in this case. If the Commission does not issue a decision either clearing (conditionally or unconditionally) or forbidding the merger within the above-cited deadlines, the merger is considered to be cleared.

Standstill obligation

The law prescribes a standstill obligation, i.e., the parties must suspend the implementation of the transaction until the clearance is issued, or until the statutory deadlines have expired.

Mandatory stay of the concentration does not prevent the implementation of a takeover notified to the relevant authority pursuant to the law regulating the takeover of joint stock companies, or the law regulating privatisations, under the condition that the notification of concentration is made in a timely manner, that the acquirer of control does not execute its managing rights based on the acquired rights, or that it does so only for the purpose of maintaining the full value of investments and based on a special approval obtained from the Commission.

Confidential information

Information regarding the merger control proceedings may be classified as confidential and shall not be published by the Commission if the party proves that it shall suffer substantial damage due to publication of such information. The decisions of the Commission, apart from information classified as confidential, are regularly published on its website.

Merger clearances with commitments

Since its establishment in 2006 and up to the very end of 2009, most of the work of the Competition Commission encompassed merger filings. Restrictive agreements and abuses of dominant position were very rare. Furthermore, the merger clearance decisions were very short, simple and without detailed elaborations. The procedure before the competition 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 potential competition concerns that can arise from the concentrations between the two or more undertakings), it began to use all of the legal tools that it possesses, including in-depth procedures, conditional clearances and, finally, prohibitions of concentrations.

The competition rules have still not been properly developed within the meaning of merger control rules. There are only very general provisions contained in Serbia's competition law that enable the Competition Commission to issue conditional clearances. To date, no guidelines, best practices or model texts have been adopted by the Competition Commission for the purpose of issuing conditional clearances. For that reason, 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 to its regular (unconditional) clearances. All of the conditional clearances were issued by way of simplified procedures, even though one would expect that an in-depth procedure be initiated once the competition authority reached the conclusion that conditions and obligations must be imposed. In those cases, the Competition Commission would simply conclude, at a certain stage of the review process, that the merger filing could neither be cleared nor prohibited, but rather that certain conditions had to be imposed on the applicant. Such conditions were those that the competition authority found to be most appropriate in the case in question, and unfortunately usually imposed without any consultations with the applicant itself. Among the numerous legal issues inherent in such approach, the two were most significant:

there were no legal rules that the competition authority should have followed during the process of the issuance of the conditional clearance; and
the applicants were not aware of the possibility that a conditional clearance decision could be issued – they found out about such imposed conditions only after receipt of the decision.

However, in the recent Stampa Sistem/Futura Plus case, the Competition Commission followed the basic EU merger control rules that apply to clearances with conditions and obligations. This was the first case that encompassed negotiations between the competition authority and the applicant, and the applicant's proposal of both structural and behavioural measures led to the issuance of a merger clearance acceptable to the competition 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 raises serious 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 indepth procedure:

if the parties have not submitted all the relevant data and documents that are mandatory under the respective merger control regulations; and
if the parties to the concentration have seriously opposed interests and, for that reason, it can be expected that one of the parties (specifically the target) will not provide all the relevant data and documents for the competition authority's review.

When the Competition Council commences an in-depth (Phase II) procedure, the applicant still cannot know what direction the Competition Council's enquiries during the Phase II procedure will take. It is common for the authority to contact the parties' main competitors, their largest suppliers and buyers in order to assess what their expectations of the concentration in question are (i.e., whether the competitors, suppliers and buyers estimate that their position will be degraded or perhaps improved by the implementation of the concentration).

Further, the competition authority may sometimes commence an in-depth procedure if the target is a real or presumed dominant player. Even though this is still rare in practice, one should be aware of such possibility even if the acquirer has no or a very limited presence on the local market where the target is presumed to be a dominant player (for example, this occurred when Delhaize Group acquired Delta Maxi during in 2011).

Fees and penalties

The applicant is obliged to pay a fee for the issuance of the clearance in summary proceedings amounting to 0.03 per cent of the total worldwide annual income realised by the merging parties (capped at E25,000). The fee for the issuance of a merger clearance in the inquiry proceedings is set at 0.07 per cent of the total annual income realised by the merging parties (capped at E50,000). If the Commission rejects the notification on procedural grounds, the fee is E500; should the Commission prohibit a transaction, the fee for issuance of such a decision is E1,200.

Implementing a concentration that was not notified or not cleared can result in a fine of up to 10 per cent of the total worldwide annual turnover of a company realised in the year prior to the start of the proceedings. Late filings may be sanctioned with a procedural penalty, which is also capped to the same amount.

To date, we are not aware of any fine having been imposed in Serbia for not notifying a merger. However, from the beginning of 2011, the Competition Commission started to impose fines for abuses of dominant position and restrictive agreements (the fines amounted to approximately E40 million; so far, such fines have been imposed solely against domestic companies), and it can be expected that fines for the implementation of mergers without clearance could be soon imposed in Serbia as well in quite significant amounts. In cases of acquisition of sole control, the buyer would be solely responsible for the filing, and for payment of the fine. In cases of joint control, both acquirers of joint control 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, cancellation of the agreement or performance of any other action that would lead to the restitution of the status prior to implementation of the concentration. The Commission has not implemented any de-concentrations to date. The Commission may also impose both behavioural and structural measures on merging entities in order to alleviate antitrust concerns. While the former have been used in a few cases in which the Commission issued conditional clearances, structural measures have never been used in practice, although they were suggested in one case. Furthermore, special sanctions, such as additional fines or non-registration, might be applicable in certain particular sectors (i.e., banking or telecommunications).

The Serbian Criminal Code contains a wide provision that could be used to interpret a concentration resulting in the creation or strengthening of dominant position as an 'abuse of monopolistic position'. In this case, the person responsible for intentional implementation of a prohibited concentration could be criminally prosecuted. The maximum sanction is three years' imprisonment; however, this provision has never been used in practice.

Judicial review

Resolutions of the Competition Commission are final administrative proceedings. The party to the proceedings or a third party with a legal interest may challenge the decision before the Administrative Court of Serbia by initiating an administrative dispute through filing a claim within 30 days of receipt of the decision, or within 60 days if the appellant did not receive the decision. The appeal does not preclude the enforcement of the decision. However, the Competition Commission can in certain cases postpone enforcement until the Court ruling upon the request of the appellant.

The Administrative Court may confirm the decision, annul the decision and return it to the Competition Commission for revision, or decide the case itself. The Administrative Court must decide the administrative dispute within two months of receiving the claim.

The Supreme Court of Cassation decides on extraordinary legal remedies against the rulings of the Administrative Court. Such a request may only be filed if the Administrative Court has violated the law or procedural rules where this could have affected the outcome of the proceedings.

iv Substantive assessment

When deliberating on the permissibility of a concentration, the Competition Commission particularly considers the following:

the structure of the relevant market;
actual and potential competitors;
the market position of the parties and their economic and financial power;
the possibility to choose suppliers and customers;
legal and other barriers to entry in the relevant market;
the level of competitiveness of parties;
supply and demand trends for relevant goods or services;
technical and economic development trends; and
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 authority will analyse the level of concentration of the market by relying on the HHI index, and assess the parties' market power based on the market share information.

Despite the SIEC test being an integral part of the assessment toolkit, the Competition Council in practice initiates Phase II proceedings, discusses remedies and blocks transactions almost exclusively by relying on the dominance test.

IV OTHER STRATEGIC CONSIDERATIONS

i Voluntary notification

Exceptionally, the Competition Commission has the authority to institute an ex officio merger control procedure if an un-notified concentration results in the merged undertakings having a market share above 40 per cent. The 40 per cent market share threshold is not a mandatory 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 per cent).

However, to avoid a situation of an 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). However, since the enactment of the Competition Law, to our knowledge the Competition Commission has not initiated any ex officio merger control procedure where a concentration that has not been notified might have resulted in the parties' market share exceeding 40 per cent.

ii Acquisition of minority shareholdings

Similarly to the EU regime, an acquisition of a minority shareholding may trigger the filing requirement provided that the minority shareholder would be able to exercise certain controlling rights that fall outside the scope of ordinary rights attributed to a minority shareholder. However, while the European Commission would normally rely on its own guidelines (the Consolidated Jurisdictional Notice), the Serbian Competition Commission has enacted no such guidelines. Parties normally refer to the Consolidated Jurisdictional Notice, although it is evident that in certain cases the Competition Commission will use a wider interpretation of control than that found in the European Commission's Notice.

iii Takeovers by public tender offer

Regardless of whether the turnover thresholds have been met, all transactions occurring as a result of a public tender offer have to be notified to the Competition Commission. The only exception is where the public tender offer would result in an internal restructuring within a holding.

V OUTLOOK AND CONCLUSIONS

The merger control regime in Serbia functions relatively well. The Competition Commission has increased its capacity, and handles cases in an efficient and fairly consistent manner. Some of its activities have to a certain extent been motivated by public pressure and consumer expectations, but its standard of review is transparent and predictable.

The regime is for the most part aligned with the EU regime and there are no immediate areas of concern. We expect certain formal changes in the standard of review following the announced changes in the definition of dominance, which will necessarily reflect upon the dominance test that is used most often in substantive review.

This article was first published in The Merger Control Review, 4th edition by Law Business Research Ltd.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Serbia: The Merger Control Review 2013 - Serbia Chapter