Apart from whether to retain the current notification system of individual exemption or switch to self-assessment, another possible dilemma of the drafters of the new Serbian Competition Act is who should have standing to challenge an individual exemption decision of the Competition Commission. Currently, in practice the standing belongs only to the parties which requested the exemption. But isn’t this unfair?

Legislation: A wide range of possible plaintiffs

If one looks only at the Serbian legislation, the scope of potential plaintiffs is potentially very wide: an administrative act (such as an individual exemption decision) can be challenged by any person (natural, legal, or other) which asserts that the challenged act violated its rights or legal interests. Just based on this, one could come to the conclusion that any interested third party could challenge the exemption decision, for instance a competitor of the parties whose agreement was exempted.

Practice: Standing limited to the parties which requested exemption

Nevertheless, in practice, the scope of potential plaintiffs is actually very limited. Specifically, the highest Serbian court has refused standing to the competitors of the party whose agreement was individually exempted by the Competition Commission. The court found that the challenged administrative act did not clearly affect the plaintiffs’ rights or legal interests but only concerned the rights and obligations of the parties to the exempted agreement.

In other words, judicial review of an individual exemption decision can be initiated only by the parties to the administrative proceedings before the Commission, which would be parties to the agreement for which exemption was requested. Other subjects can hardly join the administrative proceedings as they do not even know such proceedings are pending. This is since in Serbia individual exemption notifications are not published and, most often, not even the final decisions granting exemption.

How is this regulated in the EU?

To start with, at EU level there is no more individual exemption based on notification, as this was abolished by Regulation 1/2003. However, while the notification system existed, the scope of parties which had standing to challenge individual exemption decisions was certainly wider than what is the practice in Serbia.

Specifically,  according to Article 263, paragraph 4 of the TFEU (previously: Article 230, paragraph 4 of the EC Treaty), proceedings against a decision of the European Commission can be instituted 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. And from the period when the notification system existed in the EU there is express case-law confirming that competitors of the parties whose agreement was exempted can challenge the exemption decision (see Metropole télévision and Others v Commission).

Shouldn’t something similar be introduced in Serbia as well?