Similar to the question who can challenge the Competition Commission’s individual exemption decisions, it is not entirely clear who can attack the Serbian watchdog’s merger decisions. And while the scope of such parties may currently be narrow, this could change with the adoption of a new Competition Act.
Legislation: Anyone interested could challenge a merger decision
In governing the procedure of merger control, the current Competition Act is silent with respect to who can challenge merger decisions.
And, same as with respect to individual exemption, if one looks only at the general rules on court review of administrative acts, it may appear that the scope of potential plaintiffs is fairly broad – the challenger can be any person (natural, legal, or other) who asserts that the challenged act violated its rights or legal interests.
But it’s a little bit different in practice…
As far as I know, unlike with respect to individual exemption, there is no Serbian court decision specifically on who can challenge a decision rendered in the merger control procedure.
However, if we applied the principles of the individual exemption ruling to the issue of merger decision, then probably the only one who could challenge a merger decision would be the notifying party (generally, the acquirer).
EU: A much wider scope of potential plaintiffs
The issue of standing in proceedings to challenge merger decisions is one that appears to be regulated quite differently in Serbia and the EU: in the EU, a decision of the European Commission can be challenged not only by the person to whom the challenged decision is addressed, but also by any other person directly and individually concerned with the decision.
On this basis, the European Commission’s merger decisions can also be challenged by interested third parties – and this happens in practice.
Another problem: No prior announcement of a merger filing
Related to the issue of standing to challenge merger decisions is the issue of the publicity of the merger notification process. Specifically, if the standing to challenge merger decisions is limited only to those who participated in the administrative proceedings before the Competition Commission, then all interested parties need to be aware that such proceedings are actually under way, i.e. that the merger filing has been submitted.
Currently, that is not the case in Serbia: the Competition Commission is not obliged to announce that it has received a merger notification. Rather, apart from when it starts a Phase II investigation, the Commission publishes only a non-confidential version of the final decision, which means that third parties will in general learn of the merger proceedings only once they are already completed. And how can they then participate in such proceedings?
Due to this, it seems optimal for the new Competition Act to both expressly widen the scope of potential plaintiffs having the power to challenge merger decisions as well as to increase the transparency of the merger control procedure by introducing the Commission’s obligation to announce on its website that a merger filing has been submitted.