It had to happen at some point: in a decision dated 12 July 2017, the Serbian Competition Commission for the first time fined an undertaking for implementing a merger without clearance. Even though the fine can be qualified as symbolic, it is a strong indication that the Commission will no longer refrain itself from issuing fines in similar cases.
The disputed transaction was a local one, limited to Serbia.
In early 2015, the fined undertaking (the company Prointer) acquired 50% in the Serbian company Alti, active in the retail market for consumer electronics. This was duly notified to the Commission as Prointer’s acquisition of joint control over Alti together with the seller, an individual who was previously the sole owner and who retained the remaining 50%.The authority cleared the transaction in Phase I, finding no competition concerns.
In December 2015, Prointer enter into an agreement to acquire the remaining 50% in Alti. The deal was implemented in June 2016, when Prointer’s 100% ownership was officially registered. No merger filing was made for this additional step. The Commission somehow learned of this and started ex officio merger examination in December 2016. These proceedings resulted in the decision which is the topic of this post.
This decision can be safely qualified as landmark, as this is the first time the Commission has issued a fine for gun-jumping. Nevertheless, taking into account the relatively small amount of the fine, this seems to be more of a signal to other undertakings of the Commission’s intent than penalty for the party concerned.
Specifically, the Commission fined Prointer approximately EUR 56,000 or 0.25% of the undertaking’s turnover in the relevant year, which is far below the ceiling of 10% of the turnover.
In reasoning the amount of fine, the Commission in particular took into account that, had the acquirer notified the transaction, the filing fee would have been EUR 25,000. So, the Commission essentially fined Prointer only the difference between the regular filing fee and the imposed fine.
The Commission also emphasized that a higher fine was not appropriate since the transaction did not raise competition concerns, as it led neither to horizontal overlaps nor to negative vertical effects. This shows that the Commission still insists on its stance that every transaction caught by the (extremely low) filing thresholds needs to be notified, regardless of its effects.
And what about extraterritorial mergers?
What remains to be seen is whether the Commission will also start imposing fines for failure to notify extraterritorial mergers – or whether there is a loophole for such transactions. In any case, if the Commission would start issuing fines even for extraterritorial mergers, this would be another argument for scrapping the inadequate filing thresholds.