Serbian Competition Authority Issues Long-awaited Guidance On The Concept Of A Concentration In Cases Of Interrelated Transactions

• Published date: 21 April 2021
• Subject Matter: orporate/Commercial Law, Anti-trust/Competition Law, M&A/Private Equity, Corporate and Company Law, Antitrust, EU Competition
• Law Firm: Schoenherr Attorneys at Law
• Author: Mr Danijel Stevanovi&#263

On 12 April 2021, the Serbian Competition Authority ("SCA") issued an opinion on the fundamental merger control notion of a "concentration" in cases involving interrelated transactions (the "Opinion")¹. The Opinion is one of the most important interpretative documents issued by the SCA in recent years, as it marks a U-turn in how the SCA will treat several transactions for merger control purposes and reaffirms the role of EU rules and precedents in interpreting Serbian merger control rules.

The SCA's approach so far

As many companies and their advisors know, the SCA took a unique position compared to most European competition authorities in terms of how it treats several interrelated transactions for merger control purposes. Specifically, the SCA had a strict stance pursuant to which several transactions, even if related and interlinked legally and/or economically, could not be treated as a single unitary concentration but as several separate concentrations. Because of how Serbian merger control filing thresholds are set up, this approach often meant that M&A operations involving several steps and sequences required several separate merger notifications, review processes and clearances.

This stance was widely deemed inadequate, as it stood in contrast to the treatment of comparable M&A scenarios in the EU and most European countries. While Serbian merger control rules are a transplant from EU law, they notably diverged in this regard, as the SCA seemed not to recognise that to constitute a concentration, a transaction must lead to a lasting change of control and thereby to a lasting change in the structure of the market.

Besides this conceptual objection, the SCA's stance led to many undesired consequences. For example, while an operation would require a single merger control clearance in most jurisdictions, in some instances, the same operation could require two or more separate clearances in Serbia. This translated into increased legal risks and costs, as well as prolonged waiting periods. In some instances, it even led merging parties to restructure their operations in a way that reduced the number of required merger control approvals.

The SCA's approach going forward

In this context, the Opinion is a welcome clarification and change of position from the SCA, as it rectifies the above concerns and further aligns Serbia's merger control regime with that of the EU. The Opinion especially clarifies the following key points:

• EU merger control rules...