Now that it’s behind us, it’s safe to say the previous year was one of the most eventful ones since modern Serbian competition law came to being. This not only due to a fairly active Competition Commission, but also due to other developments, such as those surrounding the drafting of a new Competition Act.
In the field of antitrust, the Competition Commission was active both with respect to restrictive agreements and concerning abuse of dominance.
During 2017, the Competition Commission issued three infringement decisions in the area of restrictive agreements and opened three new cases. That is a bit more than during 2016, when the Commission issued two infringement decisions in the area of restrictive agreements and opened three investigations.
In March 2017, the Commission issued a decision establishing that two Serbian cooking oil producers, Vital and Victoriaoil, had entered into a restrictive agreement. The Commission found that a cooperation agreement between the parties was restrictive as it limited and controlled the production of cooking oil in Serbia. The case is particularly interesting since it did not concern a restriction by object and the Commission therefore engaged in showing that the agreement produced negative effects on the market. Both producers were fined 0.33% of their respective annual turnover (in absolute terms, the fine for Victoriaoil was approximately EUR 200,000 and for Vital EUR 70,000).
The other two infringement decisions in the area of restrictive agreements both came at the very end of the year.
The first concerned the imposition of minimum resale prices of sportswear. Apart from the distributor N Sport, the Commission also investigated (and fined) 14 retailers which had an agreement with N Sport with a minimum resale price obligation. The distributor was fined approximately EUR 140,000 (0.62% of its relevant annual turnover) while the retailers were fined between 0.2% and 0.29% of their respective annual turnovers (in absolute terms, the highest of those was approximately EUR 130,000).
Finally, in the third infringement decision the Commission established bid rigging concerning the overhaul of rail vehicles. The Commission established that four service providers had agreed on the terms of their bids to secure that each of them was awarded at least a part of the tender. Famously, collusion between the parties included a meeting at a cafe in Belgrade. Each of the undertakings was fined 2% of its respective annual turnover on the Serbian market (in absolute amounts, the fines ranged between approximately EUR 12,000 and EUR 42,000).
Apart from closing pending investigations, the Commission was also busy opening new ones, which are pending.
The first case the Commission opened last year concerned alleged bid rigging in public tenders for the supply of hygiene products to the Serbian Ministry of Defense. Five companies in total have been included in the investigation so far.
The Commission also started investigating Imlek, the largest Serbian dairy, and Kruna-Komerc, a Serbian dairy products trader. The Commission is alleging that the companies had engaged in bid-rigging by coordinating their commercial behavior with respect to a public procurement bid.
Finally, the Commission opened an investigation concerning vertical price-fixing by an importer of Škoda cars to Serbia and 19 of its dealers/repairers. According to the Commission, agreements between the importer and the dealers all contain a provision which maximizes the rebate which the respective dealer is allowed to grant to the buyer when participating in public tenders.
Serbia still has a system of individual exemption of restrictive agreements which requires prior notification to the Competition Commission. Annually, around a dozen agreements are notified to and exempted by the Commission. For instance, during 2016 the Commission exempted 19 agreements.
During 2017 that number was probably similar. Unfortunately, the Commission does not regularly publish its exemption decisions and the exact number of exemptions will be known only once the watchdog publishes its annual report (this usually happens during spring).
New block exemptions on the cards
In addition to dealing with investigations, the Commission also paid attention to completing the regulatory framework in Serbia. Specifically, it set itself a goal to prepare the drafts of four new block exemptions, which would then be adopted by the Government. These pertain to agreements in the insurance sector, technology transfer agreements, vertical agreements in the motor vehicle sector, and agreements in the sectors of transport by road, rail, and inland waterway.
Even though the Commission has prepared drafts of these exemptions, their adoption may wait until the situation with the adoption of a new Competition Act is resolved (see further below concerning this).
Abuse of dominance
During 2017, the Competition Commission closed two cases: in one instance it established an abuse of dominance while in the other the Commission closed a case which had been earlier suspended based on commitments.
The infringement case concerned excessive pricing by a company operating a bus station in central Serbia. The company was vertically integrated, in that it also acted as a bus operator. The Commission established that the price which the station operator was charging bus operators for station services was excessive, as the the costs which could be allocated to the service in question justified a price of only little more than a half of the price actually charged.
The Commission also definitely closed an investigation it had launched against the Serbian state railways back in 2013 and which was suspended in 2016 based on the commitments offered by the railways. The alleged infringement consisted in the company preventing access to its railway infrastructure to other undertakings. In November 2017, the Commission confirmed that the railway company has fulfilled its commitments and accordingly definitely closed the abuse of dominance probe.
During the previous year, the Commission opened three new abuse of dominance investigations.
In May, the Commission launched an investigation against Frikom, the largest Serbian ice cream manufacturer, alleging that alleging that Frikom had been giving incentives to its customers to purchase ice cream exclusively from Frikom. The incentives allegedly consisted in rebates and money payments to retailers to keep them from purchasing ice cream produced by Frikom’s competitors.
Then, in September, the Commission started investigating the operator of a bus station in northern Serbia for illegal discrimination. The bus station operator is a vertically integrated undertaking, owning not only the bus station but also a bus company and it appears the Commission is treating the bus station as a dominant undertaking which was charging its related company more favorably than the related company’s competitors.
Finally, in November the Commission started another bus station case, this time against the operator of a bus station in southern Serbia. The company also serves as a bus operator. Here as well the Commission is alleging illegal discrimination by the bus station, in that the service fees charged by the bus station favor its own bus operator compared to the non-related operators.
The first fine for gun-jumping in Serbia
Perhaps the most important event related to merger control in Serbia was that the Competition Commission issued its first ever fine for gun-jumping. Specifically, the fined undertaking had failed to notify to the Commission a change from joint to sole control in a transaction where the Serbian merger filing thresholds were exceeded. The Commission fined the infringing company EUR 56,000 or 0.25% of the undertaking’s turnover in the relevant year, which was far below the ceiling of 10% of the turnover. More of these can be expected during 2018.
The number of merger decisions once again surpasses 100
During 2016, the Serbian Competition Commission reached an important milestone, as the number of merger decisions under its belt surpassed 1,000. Annually, the Commission examines around 100 mergers and 2017 was a continuation of this trend – based on preliminary data, the Commission last year examined at least 110 mergers.
Such a large number of merger decisions is down to the fact that Serbia has extremely low merger filing thresholds, which are triggered even in the case of extraterritorial concentrations with little or no effect in Serbia. To put this into perspective: during 2017, out of 110 merger decisions published so far, almost 50 decisions concerned transactions where the target was either not present at all, or its presence was negligible. Is this in itself sufficient to justify raising the Serbian merger filing thresholds?
One Phase II opened, one closed, one abandoned
During 2017 the Commission opened only one Phase II merger investigation, pertaining to the planned acquisition of a Serbian yeast producer (owned by the American Alltech) by the French giant Lesaffre. The in-depth investigation came due to a market overlap in Serbia. The Commission is yet to reach a decision in this case.
Earlier in the year, the Commission also closed one Phase II investigation it had started back in 2016. Specifically, the Commission conditionally approved the takeover of I.KOM, a Serbian cable operator, by its rival Serbia Broadband (SBB). The most important condition was that SBB divest the parallel secondary network infrastructure in areas where the networks of the parties overlapped.
Finally, during 2017 the Commission abandoned its ex officio investigation into a potential gun-jumping by the Serbian subsidiary of Banca Intesa. When opening the investigation, the Commission alleged that the bank should have notified to the Commission the acquisition of an office building in Belgrade. In the end, however, the Commission did not find any wrongdoing by Banca Intesa and abandoned the case.
And on top of everything described above, there are additional reasons to remember 2017 from the perspective of competition law in Serbia:
- The work on a new Competition Act started, which should further align Serbian law with the EU model;
- The current Competition Act has come under a constitutional challenge;
- Serbia got its first competition law association;
- The first ever English-language monograph on Serbian competition law was published by Kluwer.
Happy New Year!