Unlike the current EU mechanism, Serbia’s system of individual exemption of restrictive agreements is still based on prior notification to the competition authority – the Commission for Protection of Competition. However, it seems this is about to change.
Strengthening the NCA’s capacity – guidelines for self-assessment
A few days ago, the Serbian NCA announced the launch of a project for strengthening of its capacity, financed by the European Bank for Reconstruction and Development (EBRD). Among items in the project – drafting of guidelines for self-assessment of restrictive agreements.
The announcement of such guidelines is the clearest hint yet that self-assessment will really be introduced. This is expected to happen with the adoption of a new Competition Act, the drafting of which is in progress.
Current system in Serbia: EC Regulation 17/62 revisited
The current Serbian system of individual exemption is effectively based in EC Regulation 17/62, according to which parties to a restrictive agreement had to notify the agreement to the European Commission in advance in order to be able to benefit from an exemption. Apart from Serbia, some other countries in the Balkans have also followed this notification approach (Montenegro, Bosnia and Herzegovina) while some already have an exemption system based on self-assessment (Macedonia).
Introduction of self-assessment is welcome, but the possibility of notification should be retained
The introduction of self-assessment with respect to individual exemption of restrictive agreements is certainly welcome, as this way Serbian competition legislation will be further aligned with the relevant EU acquis. However, why not also keep the possibility of notification to the NCA?
I have already written about this earlier (see Individual Exemption in Serbia: Notification or Self-Assessment? Both!) and am still of the same opinion: when faced with the dilemma between prior notification and self-assessment, my suggestion would be to have both, as it brings the best of both worlds.
On one hand, those parties who wish to rely on self-assessment and avoid the administrative procedure before the Commission would have that possibility. On the other, those parties which prefer legal certainty to expedience would also have it their way.
A chance to regulate standing for challenging individual exemption decisions
As discussed earlier (Serbia: Who Should Have Standing to Challenge Individual Exemption Decisions?), it is not entirely clear who under Serbian law has standing to challenge individual exemption decision. The court practice has afforded that standing to a very narrow group of plaintiffs. If the notification system would be retained along self-assessment, the newly drafted Competition Act could also regulate the issue of standing more conclusively, in accordance with EU standards.