1) Is a merger control regulation in force?

Yes. Merger control regulation is currently governed by the Serbian Competition Act from 2009 (last amended in 2013). 

2) Which authorities enforce the merger control regulation?

The Serbian Competition Commission, as an autonomous and independent organization that exercises public powers, is entrusted with enforcement of the Serbian Competition Act in general. 

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Part 3 of the Serbian Competition Act. More detailed rules may be found in bylaws, such as Regulation, but also a number of instructions and publicly available positions of the Commission on application of certain provisions of the Act. Links to the relevant legislation, guidelines and forms are listed here:

Serbia does not have a general screening of foreign direct investment, comparable with the EU FDI regime. However, there is a sector-specific FDI regime in the defense sector – under The Production and Trade of Arms and Military Equipment Act. A foreign investor whose activities fall under the scope of this act is obliged to notify the Ministry of Defense/the Serbian Government and obtain approval for such investment.

4) Does general competition regulation apply to mergers or ancillary restrictions?

According to the Regulation on the Contents and Manner of Submitting of Merger Notification adopted in 2016, if the applicant wishes the Serbian Competition Authority to assess the ancillary restraints relating to the merger, a long-form notification must be submitted (that can still be cleared in phase I proceedings) – this is added as an option, but not obligation of the applicant.

However, even if the applicant does not wish the Serbian Competition Authority to assess the ancillary restraints as a part of an approval of a merger, the Serbian Competition Authority is free to assess those under the general competition rules. In general, restrictions that are indeed ancillary to the merger are considered as inherent parts of the merger and are not subject to separate scrutiny under the general competition rules – especially in foreign-to-foreign transactions. However, restrictions that go beyond what may be considered necessary may be subject of the Serbian Competition Authority’s scrutiny. General competition regulations may also be applied to oppose a transaction (not merely a specific restriction in the transaction documents). For instance, the general prohibition on anti-competitive agreements may be applied to full-function joint ventures that have coordination of the market behavior of the parent companies as their object or effect

It should be noted that there are no guidelines on assessment of ancillary restraints comparable to those in EU. However, in the lack of national rules, the Serbian Competition Authority usually refers to applicable EU rules, by acting in accordance with the Stabilization and Association Agreement between Serbia and EU.

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

National bank of Serbia (NBS)

NBS’ prior approval is required for the following acquisitions:

1. acquisitions of a qualified shareholding in a bank (i.e., any transaction whereby one of the following shareholding brackets are obtained: 5–20%, 20–33%,  33–50% and above 50% of voting rights),
2. acquisitions of a qualified shareholding in an insurance company (i.e., any transaction whereby one of the following shareholding levels are obtained: 10%, 20%, 30% or 50%, or any acquisition of shares that confers effective influence on the management upon the acquirer),
3. acquisitions of a qualified shareholding in a voluntary pension fund (i.e., any transaction whereby one of the following shareholding levels are obtained: 10%, 20%, 30% or 50%, or any acquisition of shares that leads effective influence on the management).

Republic of Serbia Securities Commission (SSC)

SSC’s prior approval is required for the following acquisitions:

1. acquisitions of a qualified shareholding in open investment funds by a new undertaking (i.e., any transaction whereby the shareholding level of 10%, or more is obtained or any acquisition of shares that leads to substantial and effective influence on the management),
2. acquisitions of a qualified shareholding in alternative investment funds (i.e., any transaction whereby the shareholding level of 10% or more is obtained or any acquisition of shares that leads to substantial and effective influence on the management),

Regulatory Body for Electronic Media

Any change of ownership structure of a holder of license for provision of media services must be notified in advance to the Regulatory Authority for Electronic Media.

Foreign investment control

Foreign investment control regime in Serbia only exists in the defense sector, namely for investments concerning the activities for production of weapons and military equipment. The Production and Trade of Arms and Military Equipment Act establishes a regime for screening foreign investments in undertakings relevant from perspective of protecting the environment, national and public security, defense, and public health. Foreign investments in defense sector are subject to prior mandatory approval of the Serbian Ministry of Defense.

Foreign investors in the defense sector have to obtain this approval in case of:

1. acquiring any shareholding in the equity of a company active in the production of weapons and military equipment;
2. establishing a company active in the production of weapons and military equipment (independently or as a joint venture);
3. recapitalization of a company active in production of weapons and military equipment.

The screening regime is applicable in all cases – there are no thresholds.

If the foreign investment meets the criteria described above, the investor must file a notification and obtain the Ministry’s approval. Notifications must be filed using a unified form and include a wide range of information, e.g. information about the foreign investors and target’s ownership structure, its business activities or source of financing of the foreign investment.

Once the investment screening procedure is initiated, the Ministry reaches out to Government of the Republic of Serbia who decides on the matter. The details on exactly how the review will be conducted and what parameters will be assessed are not clear yet. However, the outcome of the screening procedure can in principle be:

7) Are any parts of the territory exempted or covered by particular regulation?

The Serbian Competition Act covers the whole territory of the Republic of Serbia.

In view of international dialogues about Kosovo status, it should be noted that in accordance with Serbian law and the Constitution, the Serbian Competition Authority may deem any merger in relation to Kosovo as being under the Serbian Competition Authority. There have been instances where the Serbian Competition Authority recognized Kosovo to be part of Serbia, examining the transaction’s effects on the territory of Kosovo as well. On the other hand, there are also decisions (although related to restrictive agreements) where the Serbian Competition Authority did not take into account Kosovo when defining the relevant market, but the explanation was based on circumstances of a specific case, without questioning the jurisdiction over Kosovo – they explained that the differences in a specific sector are significant in Kosovo and other parts of Serbia, therefore allowing the Serbian Competition Authority to assess the effect of a transaction in question in a more narrow territory, excluding Kosovo.

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory whenever the thresholds prescribed in the Competition Act are met.

9) Is there a general definition of transactions subject to merger control?

Yes, according to the Serbian Competition Act a merger subject to merger control is defined as:

1. a merger or other statutory changes leading to merger of two or more undertakings into one undertaking
2. if one (sole control) or more (joint control) undertakings acquire direct or indirect control of another undertaking(s) or parts of it that may constitute an independent business unit;
3. establishment of a joint venture, or joint acquiring joint control over existing undertaking, that will act as an independent business entity on a permanent basis.

Certain transactions of a temporary nature are not considered to be mergers subject to merger control (see topics 19 and 20).

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business. However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

Change from joint to sole control transactions are also subject to merger regulations, with one clear exception established in the Serbian Competition Authority’s case law, based on the rule of a series of transaction (see topic 18). In general, where an undertaking first acquires joint, and afterwards sole control, both mergers must be notified. However, if, when notifying the first merger the applicant expresses its intention to acquire sole control afterwards (in the following two years), the Serbian Competition Authority will assess this part as well and, if approved, there is no need to notify the second merger (i.e. joint to sole control). Moreover, if conditions for notifying a series of transactions are met, the applicant can also file one merger notification for both transactions (i.e. first joint and then sole control) only after acquiring sole control, as this will be deemed as a single merger.

11) How is “control” defined?

Control is defined as a potential to exercise decisive influence on an undertaking’s activities, based on: (i) a controlling shareholding in terms of Companies Act; (ii) ownership or ownership rights over the assets (or parts of the assets) of an undertaking; and (iii) contractual rights or rights arising from securities, receivables, encumbrance over receivables, or following a business practice defined by the controlling undertaking.

Therefore, asset deals can equally (as share deals) can constitute a merger (if the acquirer acquires decisive influence over the acquired business through the asset purchase).

Control may be established based on veto rights regarding decisions that are essential for the strategic operation of the business. Therefore, a careful assessment is needed even if a transaction does not result in acquiring at least 50% of shareholding.

"Control" and "Change of control" are also interpreted according to EU competition law, including the EU Commission’s Consolidated Jurisdictional Notice, in accordance with Serbia’s obligations stipulated in the Stabilization and Association Agreement.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control.

However, if acquisition of a minority interest leads to de facto control of a business, the transaction will be subject to merger control. This is, for instance, the case when the buyer has veto rights in matters that are essential for the strategic behavior of the business (not limited exclusively to the protection of investors’ interests), or the possibility to render decisions in such matters independently.

13) Joint ventures/joint control – which transactions constitute mergers?

The following transactions regarding businesses subject to joint control may be subject to merger control if the joint venture is "full function":

1. Establishment of a (newly incorporated) joint venture that operates on long lasting basis
2. Acquiring of a joint control over an existing undertaking that operates on long lasting basis by two or more undertakings
3. Change from joint to sole control
4. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party
5. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
6. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business.

A joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on restrictive agreements (if the joint venture has coordination of the market behavior of the parent companies as object or effect). Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture has an independent presence in the market. There are no local guidelines on what is considered as “full function” joint venture, so the EU regulations would apply accordingly.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

A merger notification must be filed if:

1. the aggregate worldwide turnover of all participants in the year preceding the merger is at least EUR 100 million, provided that at least one of the participants achieved a turnover of at least EUR 10 million in Serbia; or;
2. the aggregate turnover in Serbia of at least two participants is at least EUR 20 million in the year preceding the merger, provided that each of at least two participants achieved a turnover in Serbia of at least EUR 1 million.

b) Market share thresholds

Although there is no alternative market share threshold to be applied instead of turnover threshold, when acquainted with an already implemented merger, the Serbian Competition Authority may conduct an investigation if it finds that the combined market share of merging participants in the market of the Republic of Serbia is at least 40%, i.e. if the Authority reasonably assumes that the merger is not permissible under the Competition Act, i.e. if it significantly limits, impairs or prevents competition in the market of the Republic of Serbia or its part, and especially if that limitation, impairment or prevention results in the creation or strengthening of a dominant position. Such investigation may result in launching ex officio proceedings for assessment of a merger, that can result in the same manner as an assessment launched based on merger notification filed by the applicant – the same measures can be applied. To the best of our knowledge, there are no known cases of enforcement of this rule. However, there is a case of one merger where the Serbian Competition Authority, instead of implementing this rule, conducted market research in the relevant market post-merger, that lead to dawn raid followed by proceedings for abuse of a dominant position (which is presumed to exist at 40% market share as well).

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

Any merger resulting from acquiring control over a joint stock company through a public bid must be notified, irrespective of turnover thresholds. 

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions.

16) Rules on calculation and geographical allocation of turnover

Rules on calculation of turnover are provided in the Serbian Competition Act and succinctly explained in the Serbian Competition Authority’s instructions on calculation of turnover.

Turnover is calculated based on the accounts of the participating undertakings as well as any undertakings associated with each participating undertaking, including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies, for the year preceding the merger. "Turnover" is the total annual turnover before taxation, excluding any turnover between associated undertakings (intra-group sales). The turnover of a participant to the merger the total turnover of the group it belongs to, save for intra-group sales.

Turnovers are calculated by taking into account all revenues derived from the sale of products or provision of services in the year preceding the year in which the merger is notified, not the year of a merger (which is significant for mergers conduced at the end of calendar year and notified early next year). In addition, the value of exports should be deducted for the calculation of local (domestic) turnover. If the acquisition of control concerns a part of an undertaking, only the turnover that can be attributed to that part should is considered relevant. The total group turnovers of both joint venture undertakings are considered in the establishment of a joint venture.

There are no detailed rules on the geographical allocation of turnover, thus the EU rules would most probably be observed in practice (due to the obligations that Serbia has under the Stabilization and Association Agreement).

The Serbian Competition Authority is reluctant to take into account any divestments or acquisitions of businesses after the end of the financial year that the turnover calculation is based on, as such interpretation cannot be explicitly derived from the Competition Act.

Is the seller/seller's group turnover relevant in a standard acquisition of sole control?

No.

17) Special rules on calculation of turnover for particular businesses

Insurance undertakings
For insurance companies and reinsurance companies, the total income from insurance/reassurance premiums based on contracts concluded by or on behalf of those companies is taken into account, after deducting the tax paid on the amount of premiums per contract or on the total amount of premiums.

Credit institutions and other financial undertakings
Turnover is calculated as the sum of:

1. Interest and similar income
2. Income from shares and other securities
3. Fees and commissions
4. Net profit on financial operations
5. Other operating income.

18) Series of transactions that must be treated as one transaction

Two or more transactions between the same undertakings concluded during a period of less than two years shall be considered as a single merger, whereas the time of its occurrence is considered to be the day of the last concluded transaction.

The Serbian Competition Authority’s interpretation of this rule is highly formal and for the purpose of applying it -they require that all transactions are concluded between the same seller(s) and same buyers, regardless of any other factors , leading to several merger notifications arising from the same project. In any case, only a few years ago the Serbian Competition Authority published their Position on the application of article 17 of the law on protection of competition ( occurrence of merger – serial and parallel mergers), which seems to mitigate their previous practice only to a certain extent, aligning it with EU practice.

Namely, the Serbian Competition Authority identified several scenarios can happen in practice that could lead to the treatment of several transactions as a single merger leading to single merger notification. One such scenario is a parallel acquisition of control, i.e. a situation where undertaking A acquires control of undertakings B and C in parallel, from separate/different sellers on condition that A is not obliged to buy either (B and C) and neither seller is obliged to sell (B or C), unless both transactions (purchase of B and C) are implemented. Another scenario is a serial acquisition of control, i.e. a situation where undertaking A acquires control of undertaking B conditional on B's prior or simultaneous acquisition of control of undertaking C. Serial acquisition of control may also lead to the acquisition of joint control. It concerns cases where, in a serial transaction, an undertaking agrees to acquire first sole control of a target undertaking, with a view to directly selling on parts of the acquired stake in the target to another undertaking, finally resulting in joint control of both acquirers/undertakings over the target company. If both acquisitions are inter-conditional, the two transactions constitute a single merger resulting in joint control, as a final result.

See also topic 19 regarding temporary control.

19) Temporary change of control

The local regulations are silent on this matter, and only provide specific exceptions for certain types/markets of undertakings concerned (see topic 20). The Serbian Competition Act does not recognize “a change of control on a lasting basis” as part of a definition of merger. However, the Serbian Competition Authority may apply the European Commission’s Consolidated Jurisdictional Notice to a certain extent, where a change of control may be considered temporary – and therefore not require merger filing – if a transaction is divided into steps (see also topic 18).

It should be noted that the Serbian Competition Authority is often reluctant to refer to the Jurisdictional Notice when there are no clear grounds for similar interpretation in existing Serbian legislation, but they have recently issued their Position on matters mentioned in the Notice (especially parallel and serial mergers), whereby they explicitly said that they may apply the same criteria when it comes to parallel and serial mergers. Therefore, these situations can be handled either by claiming that there was no effective control in a step-by-step transaction prior to its final stage, for example, or by applying the rules on series of transactions.

20) Special industries, owners or types of transactions

The Serbian Competition Act specifies that there is no obligation to file a merger notification in the following situations:

1. Where banks, other financial undertakings or insurance companies whose normal activities include transactions and dealing in securities are temporarily in possession of interests in an undertaking acquired with the intention to resell, provided that they do not exercise ownership rights for the purpose of determining the competitive conduct of that undertaking and that the disposal takes place within one year of the date of acquisition (the deadline may be extended by the Serbian Competition Authority for a further 6 months);
2. Where an investment fund or investment fund holding company acquires an undertaking, provided that the voting rights held by such a company are only exercised to retain the full value of the acquired undertaking and not to determine its competitive conduct;
3. Creation of a joint venture that has as its aim the coordination between two or more undertaking which retain their independence, whereby each joint venture will be assessed in accordance with the rules on restrictive agreements; or
4. Where control is acquired by a bankruptcy administrator.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities, but there is a simplified procedure – short-form merger notification, available if there is no overlap (see topic 33).

23) Other exemptions from notification duty even if thresholds ARE met?

No.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes, however the Serbian Competition Authority will not issue a clearance in such cases – but a decision on rejection of the merger notification as the thresholds provided by the Serbian Competition Act were not met. However, if the merger notification was filed based on exceeding a combined market share threshold of 40% (see topic 14b), the Authority may assess such transaction in regular proceedings, although there is no established case-law to this respect.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

The Serbian Competition Authority may investigate mergers not meeting the turnover thresholds if the combined market share of the parties to the merger exceeds 40% on the market of the Republic of Serbia – see topic 14b).

26) Referral within the jurisdiction

The Serbian Competition Authority exclusively handles all mergers meeting the thresholds provided by the Serbian Competition Act. However, mergers in certain industry sectors (telecommunications, electronic media, printed media) may be subject to additional approvals of other competent authorities (see topic 6).

27) Referral from another jurisdiction

N/A

28) Referral to another jurisdiction

N/A

29) May the merging parties request or oppose a referral decision?

N/A

30) Stage of transaction when notification must be filed

A merger notification must be filed within 15 days as of the conclusion of a binding agreement (conditions precedent to closing will typically not affect the binding type of purchase agreement, but it is not always clear whether a put/call option, for example, constitutes a binding agreement – it would depend on exact wording), publishing of a takeover bid (publication of a bid or closing) or acquisition of a controlling interest – whichever occurs first. 

The merger notification may also be submitted based on a letter of intent, memorandum of understanding or other non-binding act which show a parties’ serious (good faith) intend to implement a merger – in such cases, there is no deadline for submission of notification as they can either way opt to file only after signing of a binding agreement. There are special instructions for filing based on serious intent.

31) Pre-notification consultations

The pre-notification consultations with the Serbian Competition Authority are rarely used in practice and the authority is not inclined to be consulted before the submission of a formal merger notification. In addition, they are reluctant to provide official opinions in relation to specific cases (only opinions on general interpretation of the Competition Act). 

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Mergers that are a consequence of the acquisition of securities on a stock exchange or a public takeover bid must be notified 15 days as of the publication of the public bid or the closing of the bid, as opted by the applicant. 

The acquisition/takeover bid may be implemented before approval from the Serbian Competition Authority has been obtained, provided that the merger is immediately notified to the authority and that the acquirer does not exercise the voting rights attached to the securities in question or only does so to keep the value of investment. Such an exception must be granted by the President of the Serbian Competition Authority.

33) Forms available for completing a notification

There are two forms available: one for short form notification and one for long (standard) form notification. 

Simplified notification is possible in each of the following cases:

1. a change from joint control to sole control;
2. the undertakings are not active on the same markets, or have market shares not exceeding 20 % on the same market (horizontal overlap) and they do not have individual market shares exceeding 30 % on any vertically connected markets;
3. the combined market share of all participants in the merger on horizontal market is less than 40%, and delta HHI is less than 150.

The Serbian Competition Authority is free to require a long form merger notification in any case.

34) Languages that may be applied in notifications and communication

Serbian language only. 

35) Documents that must be supplied with notification

The following documents are necessary for both short and long form notification:

1. the most recent (audited) annual financial statements and annual reports for each of the parties to the merger.
2. registry extracts of parties to the merger;
3. an act leading to merger, regardless of whether the merger is brought about by agreement between the parties to the merger, acquisition of a controlling interest or a public takeover bid;
4. group chart/overview for each of the parties to the merger;
5. power of attorney (if submitted through a local attorney);
6. Lists containing information for the most significant competitors (including their market shares), suppliers and customers.

Depending on specific circumstances, the applicant is free to submit any other documents that may be relevant, including analyses, reports and similar documents related to the merger (especially for long form merger notification).

36) Filing fees

The filing fee for Phase I procedure is calculated in the amount of 0.03% of the combined total global turnover generated by the parties to the merger in the year preceding the merger notification; however, the filing fee is capped to a maximum of EUR 25,000.

The filing fee for Phase II procedure is 0.07% of the combined total global turnover of all undertakings concerned in the year preceding the merger notification; however, the filing fee is capped to a maximum of EUR 50,000.

37) Is implementation of the merger before approval prohibited?

Yes, the standstill obligation is provided for in the Serbian Competition Act. The merging businesses must be run separately and independently until the merger has been approved. However, normal preparatory reversible steps are not prohibited. Regarding exceptions in public takeover bids and acquisitions on stock exchanges see topic 32.

38) May the parties get permission to implement before approval?

The implementation before approval is not allowed – the only exception to this rule is the one related to takeover bids and acquisition on stock exchanges (see topic 32).

39) Due diligence and other preparatory steps

Although there are no formal or informal guidelines provided by the Serbian Competition Authority, it is advisable to conduct due diligence in a way that prevents sensitive market information from being used for purposes other than assessing the viability of the merger.

An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary cause of business" clause that prevents the target company from taking decisions outside the cause of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” of the Serbian part of a transaction to avoid delaying implementation in the rest of the world pending approval in Serbia – this is considered to be a “grey” zone in Serbia. In any case, carve out provisions are often used, especially in foreign-to-foreign transactions that will not be implemented in Serbia at all. 

42) Consequences of implementing without approval/permission

The parties may be fined if the merger is implemented before approval is obtained. The amount of the fine will be determined based on the nature, gravity and duration of the infringement, and the fine cannot exceed 10% of the parties’ Serbian turnover realized in a year preceding initiation of proceedings.

Furthermore, the merger may be prohibited, and the Serbian Competition Authority may order the parties to roll back the transaction, i.e. split up the merged entity or take any other measures necessary to restore efficient competition.

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

It is assessed whether the merger will "significantly limit, impair or prevent competition in the market of the Republic of Serbia or its part, and especially if that limitation, impairment or prevention results in the creation or strengthening of a dominant position".

A range of factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defense) and whether one of the parties is likely to fail as an independent business (failing firm defense).

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers, but if the joint venture also has coordination between the owners as object or effect, it will also be assessed whether such coordination is acceptable under the general rules on restrictive agreements.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited. If the Serbian Competition Authority expresses serious concerns about the merger, it is important that the parties enter into negotiations of possible commitments well before the expiry of the deadlines, as the authority will normally only consider an approval with conditions if the parties have offered commitments.

Commitments may take any form and they can be either structural or behavioral and with or without time limitations.

The authority may revoke an approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments contained in the approval.

If a merger has been implemented without approval, the Serbian Competition Authority may prohibit the merger and order a split-up of the businesses or any other measure capable of restoring competition, including a monetary fine for the infringement.

48) How and when will details about the merger be published?

The Serbian Competition Authority will generally make a public announcement when it reaches a final decision concerning the merger, but only once the procedure initiated by filing of Data Protection Request (for preventing disclosure of sensitive information to third parties) is completed. The final decision published will be redacted of all confidential information. 

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right of access to the file, which includes correspondence with third parties that the Serbian Competition Authority may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the authority will only provide redacted documents/correspondence. There is no right of access to the authority’s internal documents and correspondence. Third parties do not have access to the case file.

Third parties:

Third parties do not have access to the case file.

50) Who can appeal and what may be appealed?

The decisions of the Serbian Competition Authority are final and may be challenged via submission of the administrative claim before the Administrative Court.

The status of third parties remains somewhat unclear as the Serbian Competition Act does not allow third parties to challenge decisions if they are not a party to the proceedings. The Administrative Court currently holds the view that third parties cannot challenge the aforementioned decisions – however, it can be argued that such practice is contrary to the Act on General Administrative Procedure (which is lex generali to the Serbian Competition Act) as it does not allow for special laws regulating administrative procedure (such as the Serbian Competition Act) to provide lesser legal protection than stipulated in the Act on General Administrative Procedure.