Merger notification requirements
1. Is there a mandatory merger notification regime?
Yes, there is a mandatory merger notification regime set forth in the Act on Protection of Competition (Official Gazette of the RS, no. 51/2009 and 95/2013) ("Competition Act") in force as of November 1, 2009.
2. Is there a voluntary merger notification mechanism, and if so, what advantages does it offer?
There is no voluntary merger notification mechanism.
3. If there is a mandatory notification system, what types of transactions are caught?
The Competition Act catches the following types of transactions:
- mergers and other statutory changes leading to consolidation of undertakings;
- acquisitions by one (sole control) or more (joint control) undertakings of direct or indirect control over another or more undertakings, or over part or parts of undertakings which can be considered to constitute an independent business entity; and
- establishments of joint ventures or acquisitions of joint control over existing undertakings, performing on a long-term basis all functions of an autonomous undertaking.
The concept of “control”
“Having control over another undertaking” means that an undertaking has the potential to exercise decisive influence on another’s activities. Said influence can be based on: (i) a controlling shareholding; (ii) ownership or ownership rights over the undertaking’s assets (parts of assets); (iii) rights deriving from contracts or securities; and (iv) receivables, guarantees over receivables, or on the basis of business practice introduced by the controlling undertaking.
Thresholds and jurisdiction
4. If there is a mandatory notification system, what are the threshold tests, above which a notification is required and below which it is not?
Pursuant to Article 61 of the Competition Act, a transaction shall be notified to the Commission for the Protection of Competition (“Commission”) if either of the following thresholds are met:
- the aggregate annual worldwide turnover of all the undertakings concerned generated in the preceding financial year exceeds €100 million, provided that the turnover of at least one undertaking concerned generated in the market of the Republic of Serbia exceeds €10 million;
- the aggregate annual turnover of at least two undertakings concerned generated in the market of the Republic of Serbia exceeds €20 million in the preceding financial year, provided that each of at least two undertakings concerned have generated turnover on the market of the Republic of Serbia exceeding €1 million, in the same period.
The Competition Act also sets forth a provision on the acquisition of joint stock companies performed through a takeover bid. In such cases, the notification is mandatory, irrespective of the turnover thresholds. Therefore, all acquisitions of control over joint stock companies through takeover bids are subject to merger control, regardless of the parties’ turnovers.
Upon learning about an implemented concentration, pursuant to Article 62 of the Competition Act, the Commission may initiate an ex officio investigation if the aggregate market share of the undertakings concerned in the market of the Republic of Serbia is at least 40% or if there is a reasonable indication that the concentration does not meet the requirements set forth in the Competition Act. The Commission shall bear the burden of proving that the 40% market share threshold is met.
Turnover encompasses all revenues derived from the sale of products or the provision of services before taxes in the year preceding the year in which the concentration is notified. The turnover of an undertaking assumes the total turnover of the group it belongs to, save for intra-group sales, which are outside the scope.
5. If there is a mandatory notification system, under which circumstances are joint ventures caught?
Joint ventures are caught by the mandatory notification when:
- two or more independent undertakings establish a new undertaking; or
- when they acquire joint control over an existing undertaking, which operates on a lasting basis and has all the functions of an independent undertaking (full function joint ventures).
6. What is the necessary nexus with the jurisdiction to require a filing?
A merger is subject to the Commission’s review if the relevant turnover thresholds are met.
7. What sort of information is required in a merger notification, and how long does it typically take to compile such information?
In order to be considered complete, a notification must meet the requirements set forth in the Competition Act and the Regulation on the Content and the Manner of Submission of Merger Notifications (“Official Gazette of the RoS”, No. 5/2016) (“Regulation”). The Regulation introduces short-form and long-form notifications.
Pursuant to the Regulation, the notification on concentration shall include, inter alia:
- business name, head office address and description of the scope of operations of the applicant and other undertakings concerned;
- business name, address, telephone number, facsimile number, e-mail address and original power of attorney if notification is submitted by an authorized person;
- graphic display (diagram) of a group and/or list of affiliated undertakings concerned and affiliated companies' structure prior to implementation of concentration;
- list of other undertakings registered in the Republic of Serbia that are not considered to be affiliated undertakings of the applicant, whereby the undertakings concerned hold individually or jointly 10% or more in capital or shares in such entities;
- ownership structure and forms of control (individual or joint control) of undertakings concerned;
- detailed description of the form of concentration and anticipated timeline for implementation of concentration;
- copy of the act on concentration; financial statements of undertakings concerned for the accounting year preceding the year of notification on concentration;
- total annual turnover of each undertaking concerned which were generated worldwide and in the Republic of Serbia;
- proposed definition of the relevant product market in which undertakings concerned are active;
- detailed description of distribution and retail network organization of products, i.e. services in the relevant market of the Republic of Serbia;
- available data on the entry and exit of undertakings from the relevant market;
- information on whether the notification is submitted to competition authorities in other countries and/or the European Commission.
The merger notification shall be submitted in the Serbian language. All appendices can be submitted along with their translation into Serbian by a sworn-court interpreter. The Commission may request any other information it considers relevant for the assessment of the notified concentration. Similarly, the notifying party may submit other information and documents that it considers relevant for the assessment of the concentration. In case the undertakings concerned have not provided the Commission with the additional documentation and information, upon its request, the merger notification will be dismissed.
8. Are there ways to minimize the required information filing?
The Regulation introduces a short-form filing, which applies in cases where a respective concentration is unlikely to raise competition concerns.
In particular, a concentration shall qualify for a short-form filing in the following cases (otherwise, long-form filing will apply):
- Where two or more undertakings merge, or one or more undertakings acquire sole or joint control over another undertaking or a part thereof, provided that no undertaking concerned is active in the same relevant product and geographic markets, or in the same relevant product market upstream or downstream in relation to any undertaking concerned;
- Where two or more undertakings merge, or one or more undertakings acquire sole or joint control over another undertaking or a part thereof, provided that the following conditions are met: (i) the aggregate market share of undertakings concerned in a horizontal merger is lower than 20% and (ii) the individual or aggregate market share of undertakings concerned in a vertical merger is lower than 30%;
- Where a change from joint control to sole control by the notifying party occurs;
- Where the aggregate market share of all horizontally related undertakings is lower than 40% and the change (delta) in the Herfindahl-Hirschman Index resulting from the concentration is less than 150.
9. Are there fees with respect to merger notification?
Yes, fees for clearance decisions issued per short-form filings is 0.03% of the aggregate annual turnover of the undertakings concerned – capped at €25,000. For clearance decisions in investigation procedure, the fee is 0.07% of the aggregate annual turnover of the undertakings concerned – capped at €50,000.
10. Is there any deadline within which a notification must be filed, and what is the earliest time a filing may be effected?
A notification shall be submitted to the Commission within the period of 15 days from the date of performing the first of the following acts:
- conclusion of an agreement;
- announcement of public invitation, i.e. offer or closing of public offer;
- acquisition of control.
As regards the earliest possible time for submitting the notification, the parties may notify the transaction to the Commission as soon as they are able to demonstrate their serious intent to enter into an agreement, e.g. by signing a letter of intent, publishing their intent to make a takeover offer or any other similar act demonstrating serious intent.
11. If there is a mandatory notification system, are the parties required to wait a certain period of time before completing the transaction, or can the transaction proceed without a waiting period?
There is a waiting period. The undertakings concerned are obliged to suspend the implementation of the transaction until the Commission clears it. A breach of the suspension clause is subject to fines of up to 10% of undertaking’ total annual turnover achieved in Serbia.
The Competition Act provides for an exemption from the general suspension requirement. This rule applies to acquisitions performed in accordance with legislation on takeovers of joint stock companies or in accordance with legislation on privatisations. The implementation of a transaction that has not been yet cleared, is permitted if: the filing was timely, the acquirer does not influence the decision-making of the company based on its shareholding or does so in order to maintain the value of its investment and pursuant to a “special” approval from the Commission.
12. What are both the statutory and the practical time periods necessary in order to “clear” a transaction?
Pursuant to Article 65 of the Competition Act, a transaction is deemed cleared if the Commission fails to deliver a decision within one month following the receipt of a complete merger notification, i.e. within an additional four months following the initiation of ex officio investigation.
The practical time periods usually correspond to the statutory time periods.
13. What are the consequences of failing to notify if a transaction is in excess of the relevant thresholds, or closing a transaction without notification, or before the expiry of the waiting period?
Competition Act prescribes procedural penalties for undertakings that fail to timely notify a transaction. These penalties range from €500 to 5,000 per day of delay, capped at 10% of undertakings’ total annual turnover.
Additionally, if an undertaking implements a transaction before the expiry of the waiting period, the Commission may issue a measure for protection of competition and oblige the undertakings concerned to pay the amount of up to 10% of the total annual turnover generated in the Republic of Serbia.
14. If the statutory waiting period expires without a challenge, is there any possibility of post-closing challenge?
In case the Commission has already cleared a merger, the decision may be appealed before the Administrative Court.
15. Are there ways to protect a transaction from post-closing challenge?
Challenging the decision is impossible after the expiry of the statutory deadline.
The deadline for the appeal is 30 days from the date of receipt of a decision.
16. What is the nature of the Agency which reviews merger transactions, and what are its powers to move against anti-competitive transactions?
The competent authority for merger control in Serbia is the Commission. The Commission is established pursuant to the Competition Act as an independent and autonomous organization performing public competencies in accordance with the law. The Commission has a status of a legal entity.
It is obliged to submit its annual reports to the National Assembly of the Republic of Serbia.
Its decisions are final and may be challenged before the Administrative Court.
In accordance with the Competition Act, it is competent to:
- decide on rights and obligations of undertakings, in accordance with the Act;
- impose administrative measures, in accordance to the Act;
- participate in drafting regulations in the field of protection of competition;
- propose to the Government the adoption of regulations for implementation of the Act;
- enact instructions and guidelines for implementation of the Act;
- monitor and analyse competition conditions on particular markets and in particular sectors;
- submit opinions to competent authorities on draft regulations, as well as on existing regulations that effect the competition in the market;
- issue opinions in view of implementation of rules in the field of protection of competition;
- establish international cooperation in the field of protection of competition for fulfillment of international obligations in this area, and gather information on protection of competition in other countries;
- cooperate with state authorities, territorial autonomy and local self-government bodies, for providing conditions for implementation of the Act and other rules for the implementation of protection of competition;
- perform activities in order to develop awareness on the need for protection of competition;
- keep records on notified agreements, on undertakings holding dominant position on the market, as well as on concentrations, in accordance to the Act;
- organize, perform and control implementation of measures providing protection of competition;
- perform other activities in accordance with the Act.
17. What level of confidentiality does a merger notification filing enjoy?
The Commission does not publish the notification itself nor the information that the notification has been filed.
In order to protect the confidential data, an undertaking concerned or a third party which has provided the Commission with the relevant information, may submit a request for protection of confidential information. Said confidentiality measures are issued under two conditions:
- the interest of the party requesting confidentiality must outweigh the interest of the public to access the information,
- the party requesting confidentiality has to prove the probability of damages in case the data was disclosed.
Confidential versions of the Commission’s decisions are available only to the competent courts and other state bodies with the notice that they have an obligation to treat said data as confidential.
18. Are there any rules of thumb or general guidance as to when mergers are likely to face challenge?
There are no rules of thumb prescribed under the Competition Act.
If undertakings have implemented the concentration which triggers the merger filing obligation, they are likely to face the Commission’s review. That said, it is worth noting that the Commission has significantly stepped up its activities in ex officio investigations concerning such concentrations.
Additionally, if an undertaking concerned has increased its already significant market share, said concentration is likely to enter into investigative proceedings (phase II).
19. What is the typical or recommended approach in dealing with the reviewing agency?
Once the Commission has initiated the proceedings (both phase I and phase II), parties are supposed to deliver the requested data and information. In case of an investigation, data, information and documents may be requested from third parties as well. One can argue that the recommended approach in dealing with the Commission is cooperation and making available all the documents necessary for reviewing the concentration.
20. Other than antitrust/competition review, are there other investment controls or similar regimes to be aware of?
Another similar regime to be aware of is the regime of State Aid control. The competent authority is the Commission for State Aid Control.
The Commission for State Aid Control is operationally independent body established by the Government. State aid grantors are obliged to notify State aid prior to its granting and report on all granted State aid.
Even though two separate bodies, the Commission and the Commission for State Aid Control both strive to the same aim, to preserve and improve fair competition on the market.
This guide contains summaries of general principles of law. It is not a substitute for specific legal advice and should not be relied upon in relation to the application of the law or subject matter covered.