Merger thresholds
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SERBIA

Bojan Vuckovic
Partner / Independent
Attorney at Law
in cooperation
with Karanovic & Partners

bojan.vuckovic
@karanovicpartners.com

Tel: +381 11 3094 200

Bojana Miljanovic
Senior Associate / Independent
Attorney at Law
in cooperation
with Karanovic & Partners

bojana.miljanovic
@karanovicpartners.com

Tel: +381 11 3094 200

Veljko Smiljanic
Senior Associate / Independent
Attorney at Law
in cooperation
with Karanovic & Partners

veljko.smiljanic
@karanovicpartners.com

Tel: +381 11 3094 200

Rastko Petakovic
Senior Partner

rastko.petakovic
@karanovicpartners.com

Tel: +381 11 3094 200

No new regulation adopted or proposed

Note that relevant regulations may be changed before your contemplated transaction is completed. Mergerfilers.com and our national experts keep information on regulations up to date and even provide alerts on adopted or proposed changes that have not come into force yet but may come into effect before the transaction is completed. When this field is green, we have no knowledge of such imminent changes to the relevant regulations.

Confirmed up-to-date: 01/12/2020

(Content available free of charge at Mergerfilers.com - sponsored by Karanovic & Partners )

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. Merger control regulation was introduced by the Serbian Competition Act from 2005.

2) Which authorities enforce the merger control regulation?

The Serbian Competition Commission enforces the Serbian Competition Act including the merger regulation contained therein. 

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Part 3 of the Serbian Competition Act. More detailed rules may be found in various by-laws. Links to the relevant legislation, guidelines and forms are listed here:

Original Serbian version

Unofficial English translation

Zakon o zaštiti konkurencije

The Serbian Competition Act

Uredba o kriterijumima za određivanje relevantnog tržišta

Regulation on the Criteria for the Defining the Relevant Market

Uredba o sadržini i načinu podnošenja prijave koncentracije

Regulation on the Contents and Manner of Submitting of Merger Notification

Filing forms in Serbian can be found on the website of the Serbian Competition Commission here (full notification) and here (simplified notification) (however, these forms are not mandatory).

The filing forms are not available in English.

 

4) Does general competition regulation apply to mergers or ancillary restrictions?

The Serbian Competition Act is interpreted in accordance with EU competition law in this respect, particularly after the entry into force of the Stabilization and Association Agreement between Serbia and EU.

Generally, restrictions of competition that are ancillary to the merger, for instance a standard non-competition obligation on the seller, are considered as inherent parts of the merger and are not subject to separate scrutiny under the general competition regulation. However, restrictions that go beyond what may be considered ancillary may be caught by the general prohibition on anti-competitive agreements.

The general competition regulation may in special circumstances be used to oppose a transaction as such (not merely a specific restriction in the transaction documents). For instance, the general prohibition on anti-competitive agreements may be applied to full-function joint ventures that have coordination of the market behavior of the parent companies as their object or effect. 

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Electronic communications networks and services

The acquisition of control over a holder of a public telecommunication license must be approved by the Regulatory Agency for Electronic Communications and Postal Services regardless of the turnover generated by the undertakings concerned.

Electronic media

Each and every change of ownership structure in the holder of license for provision of media services must be notified to the Regulatory Authority for Electronic Media. In practice of the regulator, this refers only to changes in direct shareholders of the holder of license for provision of media services.

Financial businesses

Mergers involving financial businesses such as banks, insurance companies and other financial organizations require approval from the National Bank of Serbia. Mergers involving financial businesses are also subject to approval from the Serbian Competition Authority, but with modifications regarding calculation of turnover and temporary ownership of businesses (see topics 18 and 20).

7) Are any parts of the territory exempted or covered by particular regulation?

The Serbian Competition Act covers the whole territory of the Republic of Serbia.

The international status of Kosovo is disputed. However, in accordance with Serbian law and the Constitution, the Serbian Competition Authority may deem any merger in relation to Kosovo as being under the Serbian Competition Authority’s jurisdiction and, thus, governed by the Serbian competition legislation. There have been instances where the Serbian Competition Authority recognized Kosovo to be part of Serbia, examining the transaction’s effects on that territory.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided the thresholds prescribed in the Competition Act are met.

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

Yes, according to the Serbian Competition Act a merger subject to merger control is defined as:

  1. a merger or other status changes in which two or more previously independent undertakings merge into one undertaking;
  2. if one or more undertakings acquire direct or indirect control of the entirety of or parts of one or more other undertakings, who may represent an independent business entity; or
  3. a joint venture that will perform all the functions of an independent business entity on a permanent basis.

Note that certain transactions of a temporary nature are not considered to be mergers subject to merger control (see topics 19 and 20).

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business.

However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

11) How is “control” defined?

The Serbian Competition Act only defines the concept of control in terms of affiliated undertakings and it states that “control” of an undertaking is a possibility of exerting decisive influence on the operations of the undertaking. Control can be obtained through rights or agreements or in other ways that make it possible to exert decisive influence.

Control may be held by one or more persons or businesses jointly. Establishment of joint control as well as changes in the group of owners with a controlling interest constitute change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, and when one of the existing owners sells its share to a third party.

Joint control may be established between a majority and a minority shareholder on the basis of veto rights regarding decisions that are essential for the strategic operation of the business. A merger will occur both when the joint control is established and again when it is dissolved; for instance, if a minority shareholder gives up certain essential veto rights so that the majority shareholder gains sole control.

"Control" and "Change of control" is interpreted according to EU competition law, including the EU Commission’s Consolidated Jurisdictional Notice, in accordance with Serbia’s obligations stipulated in the Stabilization and Association Agreement. This has also been confirmed by the Serbian Competition Authority on various occasions.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control.

However, if acquisition of a minority interest confers someone with de facto control of a business, the transaction will be subject to merger control. This is, for instance, the case if the buyer is provided with veto rights regarding decisions that are essential for the strategic behavior of the business or if the remaining shares are spread over a large number of shareholders and the acquired shares de facto confer the buyer with a decisive influence on general meetings.

13) Joint ventures/joint control – which transactions constitute mergers?

The following transactions regarding businesses subject to joint control may be subject to merger control if the joint venture is "full function":

  1. Establishment of a joint venture
  2. Change from joint to sole control
  3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party
  4. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
  5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. In the latter case, the competition authorities may consider that the transaction results in two separate mergers and that these should be assessed separately with respect to who are parties to the transaction and whether the thresholds for merger filing are exceeded.

A joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on restrictive agreements. Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture has an independent presence in the market.

Even if a joint venture is “full function” and therefore subject to merger control (provided the thresholds are met), the general prohibition on restrictive agreements may also be applied if the joint venture has coordination of the market behavior of the parent companies as object or effect.

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

A merger notification must be filed if:

  1. the total annual worldwide turnover of all undertakings involved is at least EUR 100 million and the total annual turnover in Serbia of at least one of the undertakings involved is at least EUR 10 million, in the preceding financial year; or
  2. the total annual turnover of at least two undertakings involved generated in Serbia exceeds EUR 20 million in the preceding financial year, provided that at least two undertakings involved realized turnover in Serbia in excess of EUR 1 million in the same year.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

As stated in topic 25, upon learning of an already implemented merger, the Serbian Competition Authority may conduct an investigation of the merger if it finds that the combined market share of merging participants on the market of the Republic of Serbia is at least 40%, i.e., if it reasonably assumes that the merger fails to fulfill conditions of permissibility.

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions.

16) Rules on calculation and geographical allocation of turnover

Rules on calculation of turnover are provided in the Serbian Competition Act.

There are no detailed rules on the geographical allocation of turnover, thus the EU rules would most probably be observed in practice (due to the obligations that Serbia has under the Stabilization and Association Agreement).

Turnover is calculated on the basis of the audited accounts of the participating undertakings as well as any undertakings associated with each participating undertaking, including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies, for the year preceding the merger. 

There are no specific rules governing calculation of turnover of a joint venture but general principles applicable in the EU would most probably apply.

"Turnover" is the net turnover derived from sale of products and services within the undertaking’s ordinary activities after deduction of (i) value added tax and other taxes directly related to the sales and (ii) any turnover between associated undertakings.

Turnover must be adjusted to take account of any divestments or acquisitions of businesses after the end of the financial year that the turnover calculation is based on.

17) Special rules on calculation of turnover for particular businesses

Insurance undertakings
For an insurance/reinsurance undertaking the value of the gross premiums written applies. This includes all premiums received by the undertaking the relevant year. Amounts paid by the undertaking for reinsurance are not deducted.

Credit institutions and other financial undertakings
Turnover is calculated as the sum of:

  1. Interest income and similar income
  2. Income from shares and other securities
  3. Fees and commissions receivable
  4. Net profit on financial operations
  5. Other operating income.

18) Series of transactions that must be treated as one transaction

Two or more transactions between the same undertakings concluded during a period of less than two years shall be considered as a single merger, whereas the time of its occurrence is considered to be the day of the last concluded transaction.

See also topic 19 regarding temporary control.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

Merger filing is only required if there is a change of control on a lasting basis.

In accordance with the European Commission’s Consolidated Jurisdictional Notice, change of control may be considered temporary – and therefore not require merger filing – if a transaction is divided into steps.

An example is where several undertakings jointly acquire control of another undertaking but according to a pre-existing plan, immediately after completion split the assets of the undertaking between themselves. In that situation, the temporary joint control will not be subject to merger filing, but the split-up of the assets may require one or several merger filings.

Another example of temporary control is when joint control is established for a limited period before the acquirer obtains sole control, for instance because the seller has agreed on an earn-out payment and the seller retains important veto rights for a limited period. Generally, if the period does not exceed 1 year, only the acquisition of sole control may be subject to merger filing.

20) Special industries, owners or types of transactions

The Serbian Competition Act specifies that there is no obligation to file a merger notification in the following situations:

  1. Where banks, other financial undertakings or insurance companies whose normal activities include transactions and dealing in securities are temporarily in possession of interests in an undertaking acquired with the intention to resell, provided that they do not exercise ownership rights for the purpose of determining the competitive conduct of that undertaking and that the disposal takes place within one year of the date of acquisition;
  2. Where control is acquired by a bankruptcy administrator; 
  3. Where an investment fund or investment fund holding company acquires an undertaking, provided that the voting rights held by such a company are only exercised to retain the full value of the acquired undertaking and not to determine its competitive conduct; or

Creation of a joint venture that has as its aim the coordination between two or more undertaking which retain their independence, whereby each joint venture will be assessed in accordance with the restrictive agreement rules.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities, but there is a simplified procedure available if there is no overlap (see topic 33)

23) Other exemptions from notification duty even if thresholds ARE met?

No.

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes, however the Serbian Competition Authority will not issue a clearance in such cases – but a decision on rejection of the merger notification as the thresholds provided by the Serbian Competition Act were not met.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

The Serbian Competition Authority may investigate mergers not meeting the prescribed financial thresholds if the combined market share of the parties to the merger exceeds 40% on the market of the Republic of Serbia.

Referral to and from other authorities

26) Referral within the jurisdiction

The Serbian Competition Authority exclusively handles all mergers meeting the thresholds provided by the Serbian Competition Act. However, mergers in certain industry sectors (telecommunications, electronic media, printed media) may be subject to additional approvals of other competent authorities.

27) Referral from another jurisdiction

N/A

28) Referral to another jurisdiction

N/A

29) May the merging parties request or oppose a referral decision?

N/A

Filing requirements and fees

30) Stage of transaction when notification must be filed

A merger notification must be filed within 15 days as of the conclusion of a binding agreement, publishing of a takeover bid or acquisition of a controlling interest – whichever occurs first. 

The merger notification may also be submitted based on a letter of intent, memorandum of understanding or other non-binding act which show a parties’ serious (good faith) intend to implement a merger – in such cases, there is no deadline for submission of notification.

31) Pre-notification consultations

The pre-notification consultations with the Serbian Competition Authority are rarely used in practice and the authority is not inclined to be consulted before the submission of a formal merger notification.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Mergers that are a consequence of acquisition of securities on a stock exchange or a public takeover bid must be notified 15 days after the acquisition/publication of the takeover bid. 

The acquisition/takeover bid may be implemented before approval from the Serbian Competition Authority has been obtained, provided that the merger is immediately notified to the authority and that the acquirer does not exercise the voting rights attached to the securities in question or only does so on the basis of an exemption granted by the authority.

33) Forms available for completing a notification

There are two forms available: one for simplified notification and one for full notification. 

Simplified notification is possible in each of the following cases:

  1. a business goes from having joint control to having sole control over another business;
  2. the merging parties are not active on the same markets or have market shares not exceeding 20 % on the same market and they do not have individual market shares exceeding 30 % on any vertically connected markets;
  3. if the combined market share of all parties to the merger on horizontal market is less than 40%, and delta HHI is less than 150.

Note, however, that the Serbian Competition Authority may always request a full notification, even if the conditions for simplified notification are present, and even after having accepted and declared a simplified notification complete.

34) Languages that may be applied in notifications and communication

Only Serbian.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification whether simplified or full:

  1. the most recent audited annual financial statements and annual reports for each of the parties to the merger.
  2. documentation regarding undertakings that are the parties to the merger and their subsidiaries (registry excerpts);
  3. all documents concerning the merger, regardless of whether the merger is brought about by agreement between the parties to the merger, acquisition of a controlling interest or a public takeover bid;
  4. group chart/overview for each of the parties to the merger;
  5. power of attorney for representation;
  6. Lists containing information for the most significant competitors (including their market shares), suppliers and customers;

For full notification, a range of further documents may be relevant, including analyses, reports and similar documents related to the merger.

36) Filing fees

The filing fee for Phase I procedure is calculated in the amount of 0.03% of the turnover generated by the parties to the merger in the year preceding the merger notification; however, the filing fee is capped to a maximum of EUR 25,000.

The filing fee for Phase II procedure is 0.07% of the combined total annual turnover of all undertakings concerned; however, the filing fee is capped to a maximum of EUR 50,000.

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Yes, the standstill obligation is prescribed by the Serbian Competition Act. The merging businesses must be run separately and independently until the merger has been approved. However, normal preparatory reversible steps are not prohibited. Regarding public takeover bids and acquisitions on stock exchanges see topic 32.

38) May the parties get permission to implement before approval?

The implementation before approval is not allowed by the Serbian Competition Act.

39) Due diligence and other preparatory steps

Although there are no formal or informal guidelines provided by the Serbian Competition Authority, it is advisable to conduct due diligence in a way that prevents sensitive market information from being used for purposes other than assessing the viability of the merger.

An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary cause of business" clause that prevents the target company from taking decisions outside the cause of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” of the Serbian part of a transaction to avoid delaying implementation in the rest of the world pending approval in Serbia – this is considered to be a “grey” zone in Serbia.

42) Consequences of implementing without approval/permission

The parties may be fined if the merger is implemented before approval is obtained. The amount of the fine will be determined based on the nature, gravity and duration of the infringement, and the fine cannot exceed 10% of the parties’ Serbian turnover realized in a year preceding initiation of proceedings.

Furthermore, the merger may be prohibited and the Serbian Competition Authority may decide to split up the merged entity or take any other measures necessary to restore efficient competition.

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

There are no formal rules on pre-notification consultations, and normally the Serbian Competition Authority does not prefer consultations prior to formal notification

No set duration or deadline.

Assessment of completeness of notification:

When the merger notification has been formally submitted, the authority will assess whether the notification is complete – there is no formal deadline for assessment of completeness of the notification. If the notification is deemed incomplete, the authority must provide the parties with additional RFI’s (request for information) and provide a deadline for response.

Even when the notification has been declared complete, the authority may still request more information and documentation and the authority can at any time until the merger has been approved request a full notification, even if a simplified notification has already been accepted and declared complete. Although the Serbian Competition Act is silent on the issue, it is fair to assume that such a request for full notification will not reset the deadlines triggered when the first (simplified) notification was submitted with complete information/documents.

No set duration or deadline.

Phase I:

The merger is either approved (with commitments if relevant) or it is decided to initiate a phase II investigation of the merger.

Formally, the Serbian Competition Authority may undertake the same types of investigations under phase I and II, and the authority may also negotiate commitments in both phases. However, complex and/or problematic mergers will often require the longer deadlines applicable in phase II.

1 month after the receipt of the complete notification.

Extension:
No formal possibility for extension, however the Competition Authority may restart the clock by posting new RFI’s.

Phase II:

The merger is either approved, approved with conditions/commitments or prohibited.

Normally, the Serbian Competition Authority will undertake a detailed market survey, by collecting information from the undertakings active on the relevant market(s)(including competitors, buyers and suppliers). Once sufficient information is collected, the authority will issue a formal statement.

The investigation is likely to involve detailed market surveys, economic analysis and possibly negotiation of commitments that may eliminate the concerns that the authority may have regarding anti-competitive effects of the merger.

4 months from the date when the phase II investigation was initiated.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

It is assessed whether the merger will"significantly impede effective competition – in particular due to the creation or strengthening of a dominant position".

A range of factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defense) and whether one of the parties is likely to fail as an independent business (failing firm defense).

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers, but if the joint venture also has coordination between the owners as object or effect, it will also be assessed whether such coordination is acceptable under the general prohibition against restrictive agreements.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

If the Serbian Competition Authority expresses serious concerns about the merger, it is important that the parties enter into negotiations of possible commitments well before the expiry of the deadlines, as the authority will normally only consider an approval with conditions if the parties have offered commitments.

Commitments may take any form and they can be either structural or behavioral and with or without time limitations.

The authority may revoke an approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments contained in the approval.

If a merger has been implemented without approval, the Serbian Competition Authority may prohibit the merger and order a separation of the businesses or any other measure capable of restoring competition, including a monetary fine for the infringement.

Publicity and access to the file

48) How and when will details about the merger be published?

The Serbian Competition Authority will generally make a public announcement when it reaches a final decision concerning the merger. The final decision published will be redacted of all confidential information of the parties to the merger. The publication of the final decision will come after the parties submit a formal request for protection of confidential information/documents.

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right of access to the file, which includes correspondence with third parties that the Serbian Competition Authority may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the authority will only provide redacted documents/correspondence. There is no right of access to the authority’s internal documents and correspondence.

Third parties:

Third parties do not have access to the case file.

Judicial review

50) Who can appeal and what may be appealed?

The decisions of the Serbian Competition Authority are final and may be challenged via submission of the administrative claim before the Administrative Court.

The status of third parties remains somewhat unclear as the Serbian Competition Act does not allow third parties to challenge decisions if they are not a party to the proceedings. The Administrative Court currently holds the view that third parties cannot challenge the aforementioned decisions – however, it can be argued that such practice is contrary to the Act on General Administrative Procedure (which is lex generali to the Serbian Competition Act) as it does not allow for special laws regulating administrative procedure (such as the Serbian Competition Act) to provide lesser legal protection than stipulated in the Act on General Administrative Procedure.


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