Bosnia: Quasi-Private Antitrust Enforcement?

Bosnia and Herzegovina

Bosnia: Quasi-Private Antitrust Enforcement?

While in many jurisdictions the issue is how to facilitate private antitrust claims, Bosnia and Herzegovina already has a system which could be qualified as quasi-private antitrust enforcement: antitrust proceedings can in Bosnia be initiated not only ex officio by the competition authority (the Competition Council) but also upon request of an interested party.

Privately initiated antitrust proceedings are not merely a possibility, they are in fact dominating the Competition Council’s practice. For instance, in 2016, out of eight infringement decisions in total, as many as seven came in proceedings initiated upon request of an interest party and only one in proceedings initiated ex officio by the Council.

In proceedings initiated upon request of a private party, the burden of proof in showing that a competition infringement (the conclusion of a restrictive agreement or an act of abuse of dominance) occurred is on the claimant. This does not mean that the Competition Council does not have an important role in the proceedings – it conducts the proceedings and has the final say on whether an infringement took place.

But the initiative is mainly on the parties. During the proceedings, the claimant and the investigated party exchange briefs (via the competition authority), propose evidence, and suggest to the competition authority how the case should be decided (including what relevant market definition should be adopted). While this is not private enforcement in the true sense of the word, it sure resembles it.

Such quasi-private enforcement might not be a bad idea at all. Actually, it can lead to an increase in enforcement activities, as private claimants are often more eager than the competition authority to go against what they see as an infringement committed by their competitor. This is especially important for jurisdictions where modern antitrust enforcement is a fairly new phenomenon.

The Bosnian system of initiating infringement proceedings remains only “quasi” private enforcement, as the competition authority cannot award damages to the injured party. For that, the claimant would need to turn to a civil court of jurisdiction – which is an interesting topic in its own right.

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