LAWON COMPETITION PROTECTION("Official Herald of the Republic of Serbia", No.79/2005) |
Article 1
For the purpose of urging economic efficiency and achieving economic welfare of a society in whole, especially the consumers, the present Law shall govern the market competition protection in order to provide the market participants equality, and it shall establish the Competition Protection Commission (hereinafter referred to as: the Commission).
Article 2
The present Law shall consider the following acts and activities of economic subjects and legal entities and individuals and other market participants to be the competition violation:
1) the agreements which are essentially preventing, limiting or disturbing the competition;
2) the abuse of the dominant position;
3) the concentration which is essentially preventing, limiting or disturbing the competition, primarily by establishing, i.e. strengthening the dominant position on the market;
Depending on facts found in each concrete case, the essential competition prevention, limitation or disturbance referred to in paragraph 1 items 1) and 3) of the present Article shall be judged in accordance with the following: the degree and dynamics of changes in the structure of the relevant market; the limitations and possibilities of new competitors to equally approach the market; the reasons for existing competitors to leave the market; the changes which are limiting the possibility to supply the market, the consumers’ benefit level and other circumstances which are influencing the competition violation.
The Government of the Republic of Serbia (hereinafter referred to as: the Government) shall closely regulate criteria mentioned in paragraph 2 of the present Article.
Article 3
The present Law shall apply to acts and activities performed on the territory of the Republic of Serbia, i.e. to acts and activities appearing as a consequence of acts and activities performed on the territory of the State Union of Serbia and Montenegro or on the territory of a foreign country, providing these acts and activities are causing the competition violations on the territory of the Republic of Serbia or competition violations that may influence the trade exchange between the member states of the State Union of Serbia and Montenegro.
Article 4
The present Law shall apply to all legal entities and individuals and state bodies, bodies of territorial autonomies and local governments which, directly or indirectly, participate in turnover of goods or services and which violate or may violate the competition (hereinafter referred to as: market participants) through their acts and activities, such as follows:
1) companies, entrepreneurs and enterprises, disregarding the ownership type, location, and for entrepreneurs disregarding their citizenship and residence;
2) other individuals and legal entities which directly or indirectly, constantly, occasionally or on a one-time basis participate in turnover of goods and/or services, disregarding their legal status, ownership type, citizenship, location or residence (unions, business associations, sport organizations, institutions, cooperative societies, holders of intellectual rights etc.);
3) state bodies, bodies of territorial autonomies and local governments, when they indirectly or directly participate in turnover of goods or services.
The present Law shall not apply to enterprises, companies and entrepreneurs who perform activities of public interest, as well as to persons to whom the competent body’s decision has given the fiscal monopoly, if the implementation of the present Law could prevent them from performing activities of public interest, i.e. from performing entrusted affairs.
The Implementation on Linked Market Participants
Article 5
The present Law shall also apply to linked market participants.
The present Law shall describe linked market participants as two or more market participants linked in such a way that one market participant directly or indirectly has decisive influence over another market participant’s management, particularly on the grounds of possessing the major share of the basic capital, the majority of votes in the management bodies, the right to appoint majority of management or supervisory boards members and persons authorized to represent market participants, as well as on the grounds of an agreement on transferring management rights.
The present Law shall consider two or more linked market participants as one market participant.
Article 6
The present Law shall describe the relevant market as a market enclosing the relevant market of products on the relevant geographic market.
The present Law shall describe the relevant market of products as a set of products and/or services that are interchangeable under acceptable conditions for consumers of these goods and/or services, especially in respect of their feature, usual purpose and price.
The present Law shall describe the relevant geographic market as a territory where market participants take part in supply or demand processes and where equal competition conditions exist, essentially different from the competition conditions that exist in the neighboring territories.
The Government shall closely regulate criteria for defining the relevant market.
1. Acts preventing, limiting or disturbing competition
The Concept
Article 7
The present Law shall describe agreements, contracts, specific contract parts, explicit or tacit deals, harmonized practice and market participants associations’ decisions (hereinafter referred to as: agreements) as acts whose purpose or whose consequence has or may have the essential influence on preventing, limiting or disturbing the competition on the relevant market.
The agreements mentioned in paragraph 1 of the present Article shall be forbidden and void, particularly agreements with the following characteristics:
1) agreements directly or indirectly fixing the purchasing or selling price or other trade conditions;
2) agreements limiting or controlling the production, market, technical development or investments;
3) agreements dividing markets or procurement sources;
4) agreements applying unequal business conditions for identical businesses between different market participants, thus bringing market participants into more inviolable position compared to competitors;
5) agreements conditioning the signing of an agreement by insisting on accepting additional obligations which are not related to the subject of the agreement, considering the nature of these obligations and commercial habits and practice.
The agreements mentioned in paragraph 1 of the present Article may be horizontal or vertical.
The present Law shall describe horizontal agreements as agreements concluded between existing and/or potential market participants doing business at the same level of the production chain or delivery chain.
The present Law shall describe vertical agreements as agreements on conditions of procurement, sale or resale between existing and/or potential market participants doing business at the different level of the production chain or delivery chain.
Article 8
If the Commission ex officio or upon a request coming from the interested person finds that agreement, i.e. its specific parts, essentially prevents, limits or disturbs the competition, it shall adopt a decision defining the violation mentioned in the Article 7 paragraphs 1 and 2 of the present Law.
A decision mentioned in paragraph 1 of the present Article may order measures and deadlines for their execution, and agreement participants must accept it, and the goal of these measures shall be the introduction of the competition on the relevant market and elimination of the forbidden agreement’s harmful consequences.
The Individual Exemption from Prohibition
Article 9
Following a request coming from the agreement participant, the Commission may allow exemption of an individual agreement or part of this agreement from the prohibition (hereinafter referred to as: individual exemption), if such an agreement or part of this agreement shall contribute to improving production or distribution, i.e. contribute to urging technical or economic development, and if it shall provide a fair share of benefit to consumers; the Commission’s decision on allowing exemption shall contain only limitations necessary for achieving mentioned goals, and it shall not exclude the competition of relevant goods or services in its essence.
The agreement participant requesting individual exemption shall bear the burden of proving that exemption conditions mentioned in paragraph 1 of the present Article do exist.
The Government shall closely regulate the contents of an individual exemption request.
The agreement participant requesting individual exemption mentioned in paragraph 1 of the present Article shall pay a fee for having the appropriate act issued and fee shall be defined in accordance with the Schedule of Fee Rates mentioned in the Article 50 paragraph 4 of the present Law.
Article 10
The individual exemption mentioned in the Article 9 of the present Law shall be allowed by means of a decision containing a period of time the exemption is allowed for and which cannot be longer than five years.
Following a request coming from the agreement participant who has been individually exempted by the decision mentioned in paragraph 1 of the present Article, providing this request is submitted the latest four months before the period of time the exemption is allowed for expires, the new exemption may be allowed with the new period of time the exemption is allowed for and which cannot be longer than five years.
Article 11
The Commission may revoke the decision mentioned in the Article 10 of the present Law if conditions that led to allowing the exemption have changed, i.e. it may annul it if exemption has been based on inaccurate or untruly presented facts or if the exemption has been misused.
The Agreements’ Exemptions According to Categories
Article 12
The Government shall closely regulate conditions for agreements’ exemptions according to their categories and shall define categories of prohibited agreements exempted from prohibition if they satisfy requirements mentioned in the Article 9 paragraph 1 of the present Law, as well as other requirements set by the present Law.
If the Commission, following a request coming from the interested person or ex officio, shall find the certain agreements do not satisfy requirements mentioned in the Article 9 paragraph 1 of the present Law, as well as other requirements set by the present Law, than the exemption mentioned in paragraph 1 of the present Article shall not apply to such agreements from the category of agreements exempted from prohibition.
If case mentioned in paragraph 2 of the present Article does take place, the interested person, i.e. the Commission shall bear the burden of proving the issue.
Article 13
Horizontal agreements, and especially agreements on specialization, research and development and cooperation, may be exempted from the prohibition pursuant to the Article 12 paragraph 1 of the present Law, providing they have effect on the entire territory of the Republic of Serbia and if they have not been concluded for a period of time longer than seven years.
The agreements mentioned in paragraph 1 of the present Article may be exempted from the prohibition pursuant to the Article 12 paragraph 1 of the present Law, providing they have been concluded for a period of time longer than seven years and if they have effect on the part of the territory of the Republic of Serbia.
Article 14
Vertical agreements, and especially the following agreements:
1) on exclusive sale or procurement;
2) on exclusive distribution;
3) on exclusive assignment of clients;
4) on selective distribution;
5) on distributive or solicitous franchise, which shall be prohibited because it contains regulations on exclusive distribution or procurement;
6) on exclusive agency with agent taking the commercial risk on himself;
7) on wholesalers limiting sale to final consumers;
8) on technology transfer,
may be exempted from the prohibition pursuant to the Article 12 paragraph 1 of the present Law, providing they have been concluded for the period of time longer than five years and if they have effect on the entire territory of the Republic of Serbia.
The agreements mentioned in paragraph 1 of the present Article may be exempted from the prohibition pursuant to the Article 12 paragraph 1 of the present Law if they have been concluded for the period of time longer than five years, providing they have effect on the part of the territory of the Republic of Serbia.
Reporting Agreements Eligible to Exemption from the Prohibition
Article 15
The agreement participants shall report agreements mentioned in the Article 7 paragraph 1 of the present Law that may be exempted from the prohibition pursuant to the present Law to the Commission within 15 days starting from the day when they have been concluded, except for agreements mentioned in the Article 12 paragraph 1 of the present Law.
The agreement participant may submit a request to establish whether particular agreement is not prohibited in terms of the Article 7 paragraphs 1 and 2 of the present Law.
The Commission shall make a decision following the request mentioned in paragraph 2 of the present Article.
In case circumstances leading to a decision the agreement is not prohibited shall change, the Commission shall make a decision on revoking such a decision, and in case during the additional analysis it finds the corresponding decision was based on untrue or inaccurate data, the Commission shall cancel such a decision.
For the purpose of reaching a decision mentioned in paragraph 3 of the present Article, the agreement participant which are submitting a request shall pay fees defined by the Schedule of Fee Rates mentioned in the Article 50 paragraph 4 of the present Law.
2. The Abuse of the Dominant Position
The Dominant Position
Article 16
The dominant position on the relevant market has the market participant doing business independently from other market participants, i.e. the market participant making business decisions without taking into account business decisions of his competitors, suppliers, buyers and/or final consumers of his products and/or services.
The market participant may have, but not necessarily, the dominant position if its portion on the relevant market exceeds 40%, considering portions its competitors have on that market, obstacles for entering the relevant market and strength of its potential competitors, as well as a possible dominant position of a buyer.
The dominant position on the market may also have the market participant with its portion on the relevant market below 40%, and in that case, the Commission, i.e. the one who has submitted such a request, shall bear the burden of proving the dominant position.
The market participant with its portion exceeding 40% on the relevant market shall bear the burden of proving it does not have the dominant position in terms of paragraph 2 of the present Article.
A portion on the relevant market shall be determined on the grounds of all relevant economic criteria defining market participant’s position compared to other participants, including particularly the quantity of goods and/or services and an income realized through turnover of goods and/or services.
The Collective Dominant Position
Article 17
The dominant position may have two or more independent market participants economically linked on the relevant market, so they jointly act as one market participant (the collective domination).
Two or more market participants may have, but not necessarily, the dominant position if their total portion on the relevant market exceeds 50%, considering portions their competitors have on that market, obstacles for entering the relevant market and strength of their potential competitors, as well as a possible dominant position of a buyer.
The dominant position on the market may have two or more market participants with their portion on the relevant market below 50%, and in that case, the Commission, i.e. the person who has submitted such a request, shall bear the burden of proving the dominant position.
Two or more market participants with their total portion on the relevant market exceeding 50% shall bear the burden of proving they do not have the dominant position in terms of paragraph 2 of the present Article.
The Ban on Abuse of the Dominant Position
Article 18
The abuse of the dominant position on the relevant market shall be forbidden.
Activities limiting, preventing or disturbing the competition shall be considered as an abuse of the dominant position on the relevant market of goods and/or services, particularly the following activities:
1) directly or indirectly forcing on unjustified buying or selling prices or other unjustified business conditions;
2) limiting production, market or technical development, at consumers’ expense;
3) applying unequal business conditions to same business deals between different market participants, thus bringing them into more inviolable position compared to competitors;
4) conditioning the signing of an agreement by insisting the other side accepting additional obligations which, judging by their nature or commercial habits, are not related to the agreement subject.
Article 19
If the Commission, ex officio or following a request coming from the interested person, finds the dominant position being abused, it shall make a decision defining a violation mentioned in the Article 18 of the present Law.
A decision mentioned in paragraph 1 of the present Article may propose compulsory measures for market participants in order to establish the competition on the relevant market and to eliminate harmful consequences caused by the abuse of the dominant position, as well as deadlines for their implementation.
Measures mentioned in paragraph 2 of the present Article shall not refer to dividing the company or entrepreneurship, to transferring its assets, shares or portions, to breaching contract or to giving up rights leading to possible decisive influence aimed at possessing another market participant.
Article 20
Following a request coming from the market participant with the dominant position on the relevant market, the Commission may make a decision defining that certain activities this participant intends to take shall not be the activities leading to abuse of the dominant position in terms of the Article 18 of the present Law.
The Commission may revoke the decision mentioned in paragraph 1 of the present Article if circumstances leading to making that decision have changed or it may cancel it if such a decision has been based on untrue or inaccurate data.
For the purpose of reaching the decision mentioned in paragraph 1 of the present Article, the market participant submitting a request shall pay fees defined by the Schedule of Fee Rates mentioned in the Article 50 paragraph 4 of the present Law.
The Concept
Article 21
The concentration of the market participants shall appear in the following cases:
1) if the market participants’ status changes according to the law defining companies;
2) if one or more market participants gains direct or indirect control over the other market participant or its part;
3) if two or more independent market participants establish and jointly control a brand new market participant, providing this new market participant runs a long term business, it has all independent market participant characteristics and it has access to the market (a joint venture).
A control mentioned in paragraph 1 item 2) of the present Article shall mean the possibility to decisively influence the business management of the market participant, based on law, agreements or any other legal or factual means, particularly the following:
1) ownership or right to use the entire market participant’s property or part of its property;
2) contracting authorization or any other base leading to the possibility to decisively influence the composure, work or decision-making process of another market participant.
It shall be considered as if the market participant has the control if it owns or holds the rights mentioned in paragraph 2 of the present Article or if it can carry out the control on a different basis.
The control forms mentioned in paragraph 2 of the present Article shall be evaluated independently or in a combination one with another, taking into account relevant legal and actual facts, but not the intention of interested parties.
Two or more concentrations between the same market participants exercised in a period of time shorter than two years shall be considered as one concentration, and the day when the last concentration was exercised shall be taken as the time of its origin.
Article 22
It shall not be considered as a concentration of market participants, in the following cases:
1) if banking or other financial organization temporarily acquires shares or portions for further sale, providing it sells those within the period of 12 months starting from the day of the acquirement has been made and if it does not use them in such a way to influence the market participant’s business decisions related to its market behavior;
2) if the bankruptcy administrator gains control over the market participant;
3) if joint venture has as its objective the coordination of market activities between two or more market participants retaining their legal independence, with such a joint venture being evaluated according to regulations mentioned in the Article 7 of the present Law.
Following a request coming from an acquirer of shares or portions, the Commission may prolong the period of time mentioned in paragraph 1 item 1) of the present Article, providing the acquirer proves the sale of shares or portions was not reasonably possible within the given deadline.
A Request to Issue an Approval for Exercising the Concentration
Article 23
The concentration mentioned in the Article 21 of the present Law shall be exercised after receiving an approval issued by the Commission, following a request coming from the market participant.
A request mentioned in paragraph 1 of the present Article shall be submitted if the following conditions are met:
1) if the joint total annual income of all concentration participants materialized at the market of the Republic of Serbia in the previous clearing year exceeds the amount of 10 (ten) million euros in dinars equivalent, applying the currency rate valid on the day when the annual financial statement was made, or
2) if the joint total annual income of the concentration participants materialized at the global market in the previous clearing year exceeds the amount of 50 (fifty) million euros in dinars equivalent, applying the currency rate valid on the day when the annual financial statement was made, providing at least one market participant acting as a concentration participant is registered on the territory of the Republic of Serbia.
An income mentioned in paragraph 2 of the present Article shall be calculated in the first year on the grounds of income materialized in the current clearing year divided onto 12 months level.
The income the market participants materialize in a mutual exchange shall not be counted when calculating the total annual income mentioned in paragraph 2 of the present Article.
The concentration participants shall terminate exercising the concentration until the Commission makes the decision on approving the intended concentration or until the four months deadline expires, starting from the day when the request has been submitted.
The Government shall closely regulate the contents and procedure for submitting requests to exercise the concentration.
Article 24
The total annual income mentioned in the Article 23 paragraph 2 of the present Law for those market participants engaged in providing financial services and for insurance and reinsurance companies, shall be calculated in the following manner:
1) for legal entities engaged in providing financial services, after deducting the turnover tax, the value added tax (indirect tax rates) and other taxes directly related to them, the total amount of the following incomes shall be considered:
(1) interest income and similar incomes;
(2) securities income (income from shares and other securities with variable returns, income from market participant’s portions, income from shares between linked market participants);
(3) commission demands;
(4) net profit from financial operations;
(5) other business incomes.
2) for insurance and reinsurance companies, the gross amount of collected or demanded premiums based on insurance or reinsurance contracts concluded by or on behalf of insurance companies shall be reduced for the amount of taxes collected for premiums amount per one contract or for the total premiums amount.
The Deadlines and Authorization for Submitting Requests
Article 25
A request mentioned in the Article 23 paragraph 1 of the present Law shall be submitted to the Commission within seven days starting from the day when the agreement has been signed, i.e. starting from the day when the public invitation, i.e. the offer has been published or the day when the control has been gained.
A request mentioned in paragraph 1 of the present Article may also be submitted when market participants show serious intention to conclude the agreement, i.e. when they sign the letter of understanding or when they publish the intention to make an offer to buy shares.
When one market participant is in the process of gaining control over the entire or parts of one or several market participants, than the request shall submit the market participant gaining the control, and in all other cases the market participants shall submit a joint request.
The Procedure Following the Request
Article 26
The Commission shall publish data from the request in the "Official Herald of the Republic of Serbia", and if the concentration is important for the joint market of the State Union of Serbia and Montenegro, than the Commission shall also publish it in the "Official Gazette of Serbia and Montenegro".
The published data mentioned in paragraph 1 of the present Article shall refer to:
1) market participants’ names;
2) short description of the concentration;
3) business sector where the concentration is being exercised.
Article 27
The Commission may do the following with the request:
1) reject the request, if conditions mentioned in the Articles 23 and 24 of the present Law have not been met;
2) suspend the procedure, if submitter withdraws from the request;
3) approve the concentration, if evaluation of its consequences, based on the Article 28 of the present Law, show the concentration shall not cause the essential prevention, limitation or disturbance of the competition, primarily by establishing, i.e. strengthening the dominant position on the market;
4) conditionally approve the concentration, with ordering additional conditions and commitments the market participants shall perform within the certain period of time before or after exercising the concentration;
5) refuse the request for exercising the concentration, if such a request shall lead to the essential prevention, limitation or disturbance of the competition, primarily by establishing, i.e. strengthening the dominant position on the market.
The submitter shall pay a fee for the act mentioned in paragraph 1 of the present Article in accordance with the Schedule of Fee Rates mentioned in the Article 50 paragraph 4 of the present Law.
Following an explained request coming from the concentration participant, the Commission may temporarily approve the exercising of the concentration even before reaching a decision mentioned in paragraph 1 of the present Article, particularly taking into account the consequences the concentration may have on participants and third persons, as well as the probability level of the competition violation if such a concentration is exercised.
Article 28
When evaluating the consequences of the intended concentration, the Commission shall define whether such a concentration shall essentially prevent, limit or disturb the competition, primarily by establishing, i.e. strengthening the dominant position on the market, particularly taking into account the following:
1) the structure of the relevant market;
2) the real and potential competitors;
3) the market position of the concentration participants and their economic and financial power;
4) the possibilities of choosing the suppliers and users;
5) the legal and other obstacles for entering the relevant market;
6) the level of internal and international competitiveness of the concentration participants;
7) the supply and demand trends of relevant goods and/or services;
8) the technical and economic development trends;
9) the consumers’ interests.
Article 29
The Commission shall revoke the decision if the concentration participants shall not fulfill the additional condition or commitment in accordance with the Article 27 paragraph 1 item 4) of the present Law, i.e. it shall cancel the decision approving or conditionally approving the concentration, if such a decision has been made on the grounds of untrue or inaccurate facts.
If the concentration participants cannot fulfill some of the conditions defined in the decision conditionally approving the concentration because the circumstances they could not have anticipated, avoided or eliminated have occurred, the Commission shall accordingly amend the decision.
The Enrollment into the Register
Article 30
The law shall define the concentrations that shall be enrolled into an appropriate register and that shall be obliged to obtain the approval in terms of this Law, and along with the application for enrollment it shall also be necessary to submit the Commission’s decision on approving the concentration.
III THE COMPETITION PROTECTION COMMISSION
The Establishment and Position
Article 31
The Commission is an independent organization exercising public duties, in accordance to the present Law.
The Commission has the status of a legal entity.
The Commission is located in Belgrade.
Article 32
The Commission shall be responsible to the People’s Parliament of the Republic of Serbia (hereinafter referred to as: the Parliament) for its work, and it shall submit the annual report on its work to the Parliament.
The Commission shall submit the report mentioned in paragraph 1 of the present Article until the end of February of the current year the latest, for the previous year.
Article 33
The body of the Commission shall be the Commission’s Council (hereinafter referred to as: the Council) which shall adopt all decisions and other acts from the Commission’s competence.
The President of the Council shall represent the Commission, and in case he is not able to do that, the Deputy President of the Council shall represent the Commission.
If the Deputy President of the Council is not able to represent the Commission either, than the oldest member of the Council shall replace him.
The President of the Council, i.e. the Deputy President of the Council may vest the representative role to the other Council member, entirely or partially, only on the grounds of the Council’s decision.
Article 34
The Experts’ Department of the Commission (hereinafter referred to as: the Department) shall perform expert activities from the Commission’s competence, in accordance with the present Law, the Statute, the Book of Rules and other Commission’s acts.
The Director shall run the Department.
The Council shall appoint one of the Department’s employees as the Director of the Department by majority votes.
The Director of the Department (hereinafter referred to as: the Director) shall become only an employee who graduated at the faculty of law or economy and who has necessary knowledge in the field of the competition protection.
The Director shall be responsible for his work to the Council.
The law defining labor rights, duties and responsibilities shall apply to rights and duties of employees in the Department.
Article 35
The Commission shall be competent to:
1) decide on rights and duties of the market participants, in line with law;
2) participate in drafting regulations in the field of the competition protection;
3) suggest adoption of regulations for the implementation of the present Law to the Government;
4) follow and analyze competition conditions on individual markets and in individual sectors;
5) give its opinion to competent bodies on draft laws, as well as on current regulations violating the competition;
6) give its opinions related to the implementation of regulations in the field of the competition protection;
7) establish international cooperation in the field of the competition protection for the purpose of exercising international obligations in this field and collect information on the competition protection in other countries;
8) cooperate with state bodies and territorial autonomy and local government bodies in order to provide conditions for a consistent implementation of the present Law and other regulations defining the competition protection significant issues;
9) undertake activities on developing competition protection conscience;
10) keep the books on the registered agreements, on participants with the dominant position on the market, as well as on concentrations, in accordance with the present Law;
11) organize, undertake and control the implementation of measures which are providing competition protection;
12) perform other tasks in line with law.
The Commission shall perform affairs mentioned in paragraph 1 items 1), 2), 3), 4), 5), 6), 7), 8), 11) and 12) of the present Article as entrusted affairs.
The Composition and Appointment of the Council
Article 36
The Council shall have five members appointed from the rank of eminent legal or economy experts, which have necessary knowledge from the competition protection field.
The Parliament shall appoint the Council members, following the proposal coming from authorized proposers.
Authorized proposers shall be the following:
1) The Association of Lawyers of Serbia;
2) The Scientific Society of Economists of Serbia;
3) The Bar Association of Serbia;
4) The Chamber of Commerce of Serbia;
5) The Government of the Republic of Serbia.
Authorized proposers shall define candidacies on their own, and the Government upon proposal coming from the minister in charge of trade.
Article 37
Every authorized proposer shall submit the proposal to the competent Parliament Committee with minimum two candidates per one Council member. Every proposal shall be signed and certified by an authorized proposer and it shall contain personal name, address and basic biographic data on proposed candidates.
If candidacies’ list has been submitted against provisions of the present Law, the competent Parliament Committee shall return it to the authorized proposer to harmonize it with the present Law within the next 15 days.
The Parliament Speaker shall in appropriate way publicly announce all valid lists of candidates submitted by authorized proposers with basic biographic data on candidates, and he shall do that at least 20 days before appointing the Council member.
Before appointing the Council member, the competent Parliament Committee may organize an open conversation with proposed candidates for the purpose of comprehending their abilities to perform tasks from the Commission’s competence.
The Parliament shall appoint one candidate from each valid proposal.
Article 38
The Council member cannot be:
1) a person older than 65 at the time of appointment;
2) a relative of the Council member in a direct line, i.e. in a side line, inclusively to the second level;
3) a deputy in the parliament of Serbia and Montenegro, people’s deputy and deputy of the Parliament of the Autonomous Province;
4) a person elected, named and appointed within the bodies and organizations of the State Union of Serbia and Montenegro and the Republic of Serbia, as well as other officials;
5) a political party official;
6) an entrepreneur and person participating in the management or work of a legal entity doing business;
7) a person finally convicted for crimes against the line of duty, corruption, fraud, theft or other crime making him unworthy of performing a function, disregarding the pronounced sanction, as well as persons finally convicted to prison sentences for longer than six months.
The candidate shall submit to the authorized proposer a written statement stating there are no appointment obstacles mentioned in paragraph 1 items 2), 3), 4), 5) and 6) of the present Article.
Along with the written statement mentioned in paragraph 2 of the present Article, a candidate shall also enclose proofs mentioned in paragraph 1 items 1) and 7) of the present Article, originals or certified copies.
Article 39
The Council members shall not represent authorized prospers, but they shall perform their duties independently, in line with their best knowledge and conscience, in accordance to the present Law and regulations based on the present Law.
The mandate of the Council member shall terminate only for reasons and under procedure defined by the present Law.
Article 40
The Council member shall be appointed for the period of five years.
Exceptionally from paragraph 1 of the present Article, in case of the first appointment of the Council members, two members shall be appointed for the period of three years, two members for the period of four years and one member for the period of five years. In case of the first appointment of the Council members, the Parliament Speaker shall define authorized proposers with candidates proposed for the period of three, i.e. four years, by drawing lots.
The same person cannot be appointed as a Council member more than twice in a row.
Article 41
The mandate of the Council member shall terminate in the following cases:
1) when the mandate runs out;
2) when he is dissolved because of the reasons mentioned in the present Law;
3) when the member passes away.
Article 42
Upon proposal coming from the Council or from at least 20 people’s deputy, the Parliament shall dissolve the Council member in the following cases:
1) if due to his illness and medical findings of the health care institutions he becomes incapable of performing the Council member duties for a period longer than six months;
2) if the Council member, when submitting a proposal, presented untrue data about himself or failed to present data on circumstances mentioned in the 38 and 47 of the present Law;
3) if during the mandate occur some of the circumstances mentioned in the Article 38 of the present Law;
4) if the Council member for no justified reason fails to or refuses to perform his activities constantly for at least six months or for a period of 12 months within which he does not perform his activities for at least six months with interruptions;
5) if he performs his activities as opposed to the provisions of the present Law;
6) if he presents data as opposed to the Article 55 paragraph 2 of the present Law;
7) if the Council member submits his written resignation to the Parliament.
Article 43
Once the proposal for the Council member to be dissolved has been submitted, the Council may decide to suspend the Council member at stake until the Parliament’s decision, but for no longer than six months.
Article 44
The Parliament Speaker shall send an open invitation for submitting list of candidates proposals for the Council member no later than six months before the Council member’s mandate shall expire and shall deliver it to authorized proposers who proposed candidates running out of mandate, in accordance with the Article 41 item 1 of the present Law.
Authorized proposers shall submit to the Parliament their proposed candidates within two months starting from the day when they received the invitation.
The Parliament shall decide on appointing new Council members before mandates of existing members expire.
If a mandate shall terminate according to the Article 41 items 2) and 3) of the present Law, the authorized proposer who proposed the member shall immediately, and the latest within two months, submit to the Parliament the proposed candidate to replace the empty seat in the Council. The Parliament shall appoint the Council member with five-year mandate within two months staring from the day the proposal has been submitted.
Article 45
The Council’s work is open, in harmony with regulations defining the publicity of work of state bodies, i.e. judiciary bodies.
The Council shall make decisions by majority of votes of present members, providing at least three members are present.
In case of equally divided votes, the vote of the President of the Council shall be decisive, and in case he cannot attend the session the vote of the Deputy President of the Council shall be decisive.
The Council member may isolate its opinion in the decision-making process, in writing or orally, in the minute-book.
Article 46
The President of the Council shall run the Council, sign decisions and other acts and take care of their implementation and he shall perform other duties defined by the present Law, Statute, Book of Rules and other Commission’s acts.
The Council shall appoint from its own members the President and Deputy President by majority votes of present members.
Article 47
The Council members, i.e. persons employed at the Commission, are officials in terms of law defining the conflict of interests when exercising public functions.
The Council member with the terminated membership and no longer employed employee cannot be representatives in the proceedings in accordance with the present Law, for at least two years starting from the day when the membership, i.e. the employment has terminated.
The Council member, i.e. an employee, when becoming a member, i.e. when entering a job, shall deliver to the Council a written statement stating that obstacles for the appointment mentioned in paragraph 1 of the present Article do not exist.
The Council member shall inform the President, and an employee shall inform the Department Director, about interests he has or which he has acquired through business activities, and particularly about portions he possesses in companies, i.e. activities, and he shall not participate in a voting process regarding issues he has interests in.
Article 48
The President and the Council members are eligible to receiving money compensation for their work.
The Statute shall define criteria for the amount of money equivalent to the earnings of the President and Judges of the Supreme Court of Serbia.
The Statute and Other Commission’s Acts
Article 49
The Council shall pass the Statute and other acts defining internal organization and work of the Commission.
The Government shall give its consent on the Statute of the Commission.
The Statute shall be published in the "Official Herald of the Republic of Serbia".
Article 50
The Budget of the Republic of Serbia shall provide funds for establishing the Commission and performing its activities in the first year.
The funds for the Commission’s work shall be provided from the revenues the Commission shall gain by performing its activities, and particularly from the following sources:
1) fees collected in accordance with the present Law;
2) donations, except for donations mentioned in paragraph 3 of the present Article;
3) revenues gained by selling the Commission’s editions;
4) other sources in accordance with law.
The funds for the Commission’s work shall not be provided through donations coming from the market participants the present Law shall apply to.
Fees mentioned in paragraph 2 item 1) of the present Article shall be defined through the Schedule of Fee Rates adopted by the Council, providing the Government gives its consent on it.
The Schedule of Fee Rates mentioned in paragraph 4 of the present Article shall be published in the "Official Herald of the Republic of Serbia".
Article 51
Financing the Commission shall be exercised in accordance with the financial plan the Commission shall adopt for each year, providing it submits this plan to the Government the latest until November 01 of the current year, for next year.
The financial plan shall define the Commission’s total revenues and expenditures, including allocations for reserve funds, as well as elements for defining salaries expenses.
The Commission’s total expenditures mentioned in the financial plan, together with reserve funds, shall not be higher than the expenses necessary to successfully carry out the Commission’s competence.
If revenues exceed the amount of expenditures, the surplus shall be paid to the Budget of the Republic.
If expenditures exceed the amount of revenues, the Commission shall cover the shortage from reserve funds, and if those funds are not enough – from the Budget of the Republic.
The Government shall give its consent on the financial plan.
The Commission’s annual financial statement shall be the subject to annual audit by an independent authorized auditor. The Commission shall publish the annual financial statement the latest three months after the financial year is over.
The Implementation of Law Defining the Common Administrative Procedure
Article 52
When running the procedure, the Commission shall apply the law defining the common administrative procedure, unless otherwise regulated by the present Law.
The Commission’s decisions are final.
The administrative dispute before the competent court may be initiated against the final decision.
The President of the Council shall adopt conclusions.
An appeal may be filed against the conclusion mentioned in paragraph 4 of the present Article, and it shall be submitted within three days starting from the day the conclusion has been delivered.
Article 53
Besides the exemption reasons mentioned in law defining the common administrative procedure, the proceeding party may request the exemption of the Council member or authorized person if the Council member or authorized person participates by any means in the property or management of the market participant who is at the same time the proceeding party or if he is a friend or is in bad terms with the proceeding party, its shareholder or management board member or monitoring board member or is in any other kind of close relationship or is in bad terms with the proceeding party or with person linked with the proceeding party.
The President of the Council shall decide on exempting the Council member and authorized person.
The Council shall decide on exempting the President of the Council.
The Right to Inspect the Files and the Right to be Informed about the Procedure
Article 54
The request to inspect the files shall be submitted in writing or orally in the minute-book.
The party may request other interested persons to be banned from inspecting particular documents or data in the files, if such documents and data represent state, military, official or business secret.
The President of the Council or the Council member he appoints shall decide on requests to inspect and to ban from inspection.
In a conclusion banning the inspection, the party may be ordered to prepare documents without data representing the business secret, for the purpose of enabling the inspection.
Persons filing a report to the Commission that activity preventing, limiting or disturbing the competition has been made, shall be entitled to be informed about the procedure progress and to inspect the files, in accordance with law.
The Acquisition of Data and the Data Secrecy
Article 55
The Commission may request in writing from parties and other market participants to deliver data important for determining facts in a particular case, including data representing state, military, official or business secret.
Acquired data representing state, military, official or business secret shall not be published or announced to third persons, unless a person this data refers to gives its written consent.
Initiating the Procedure Ex Officio
Article 56
The Commission shall initiate the procedure ex officio and it shall order the Department to run the procedure when it comes to relevant findings the activity violating the regulations of the present Law has been made.
The Commission may initiate the procedure ex officio when party makes the following facts as probable:
1) that performed activity prevents, limits and disturbs the competition, and
2) that it does not have enough funds to initiate and run the procedure or that running the procedure ex officio is necessary to protect its identity.
The President of the Council shall adopt the conclusion on initiating the procedure ex officio.
Initiating the Procedure upon Request
Article 57
The Commission may initiate the procedure based on the request to establish whether particular agreement is not forbidden or on the request to exempt particular agreement from the ban, submitted by the agreement participant, i.e. agreement participants.
The Commission may initiate the procedure based on the request to establish whether particular activity is not forbidden in terms of abusing the dominant position, submitted by the market participant performing this activity or intending to perform it.
The Commission may initiate the procedure based on the request against the market participant who executed the activity of preventing, limiting or disturbing the competition, submitted by the following persons:
1) market participants which suffer or which may suffer damage;
2) chambers of commerce, employers and entrepreneurs associations;
3) consumers associations;
4) state bodies, territorial autonomies and local governments bodies.
The Commission may initiate the procedure based on the request to grant the concentration execution, submitted by the following persons:
1) concentration participants in case of status changes or a joint venture;
2) market participant or participants gaining control over another market participant or his part.
The Conclusion on Initiating the Procedure Based on Request
Article 58
The President of the Council shall adopt a conclusion on initiating the procedure based on request within eight days starting from the day the request has been submitted.
Within the deadline mentioned in paragraph 1 of the present Article, the President of the Council shall adopt a conclusion rejecting the request, if unauthorized person submitted the request or if activity described in the request is not an activity preventing, limiting or disturbing the competition.
Article 59
When parties with confronted interests participate in a procedure before the Commission, the Commission shall deliver the request and conclusion on initiating the procedure to the party the procedure has been initiated against.
The party shall have the right to reply to the request within a deadline given by the Commission, but not shorter than eight days.
Article 60
The Commission may make a decision directly, without running an interrogation procedure, in the following cases:
1) if proceeding parties do not have confronted interests;
2) if party mentions facts in a request or submits evidences that can lead to establishing the true situation or if the true situation can be established on the grounds of facts known to the Commission;
3) if in the procedure initiated upon the request to grant the concentration execution, on the grounds of submitted evidences and other facts known to the Commission, it may be reasonably assumed that such a concentration shall not lead to significant prevention, limitation or disturbance of the competition, primarily by creating, i.e. strengthening the dominant position on the market;
4) if it is not necessary to run the party’s separate hearing for the purpose of protecting its rights, i.e. its legal interests.
Article 61
The Director shall authorize a person to run the interrogation procedure within the deadline given in the conclusion on initiating the procedure and shall submit the report to the Council.
During the interrogation procedure the authorized person shall obtain documents containing data significant for solving the case, it shall insight and perform other activities necessary to accurately determine facts, it shall take statements from parties, witnesses, experts and responsible persons or persons who used to have status of responsible persons, employees and earlier employees of the market participant the procedure is initiated against, as well as from all other persons who may posses particular data related to procedure circumstances, but it shall have no power to run an oral hearing.
The Premises Inspection and Temporary Deprivation of Documents and Items
Article 62
If there is a reasonable doubt that party or other procedure participant possesses documents or items significant for determining the material truth, the Commission shall request the competent body to issue an order to inspect business and other premises of the party or other procedure participant and to temporarily deprive it of documents and items.
Article 63
In case there is a danger for the essential competition violation or when it is necessary for the purpose of protecting parties’ interests, the party and other procedure participants may submit to the Commission a motion for ordering interim measures.
Upon a motion mentioned in paragraph 1 of the present Article, the Commission may in its decision command the termination of activities causing the competition violation and undertaking of measures to eliminate their harmful consequences.
The interim measures mentioned in paragraph 2 of the present Article may be in effect until reaching the final administrative act.
Article 64
The Council shall run an oral hearing in the following cases:
1) when two or more parties with confronted interests participate;
2) when witness or expert should be interrogated;
The Council may decide to run an oral hearing upon the request or upon its own initiative if it considers this useful for explaining the disputed facts.
An oral hearing shall be run only if more than half members of the Council are present.
Article 65
The Commission may make a decision on interrupting the procedure initiated ex officio if the competition is violated only slightly, and party the procedure is run against binds itself not to continue or not to repeat activity or act which is significantly preventing, limiting or disturbing the competition, and to compensate or remove the caused damage.
The procedure interruption may be in effect for six months, the latest.
If party the procedure is run against does not fulfill or breaks the taken on commitments before the deadline of six months expires or if in the meantime violates the competition again, the Commission shall carry on with the procedure.
The Deadlines for Making Decisions
Article 66
The Commission shall make a decision defining violations mentioned in the Article 8 paragraph 1 and the Article 19 paragraph 1 of the present Law when the agreement or its particular part essentially prevents, limits or disturbs the competition or abuses the dominant position, as well as a decision on exempting from prohibition the agreements mentioned in the 9 paragraph 1 of the present Law, within the deadline not longer than:
1) four months starting from the day when the request has been submitted, in a procedure initiated upon the party’s request;
2) six months starting from the day when the conclusion on initiating the procedure has been adopted, in a procedure initiated ex officio.
The Commission shall make a decision in a procedure initiated upon the request to grant the concentration execution within four months starting from the day the request has been submitted.
The Commission shall make a decision on granting the concentration under the reduced procedure within one month starting from the day the request has been submitted.
The Control over Decision Implementation
Article 67
The Department shall control the implementation of decisions on interrupting procedure, decisions containing commitments, conditions and bans for a party and other decisions finishing the procedure before the Commission.
If the Department, when exercising a control function mentioned in paragraph 1 of the present Article, finds that party is not acting according to the decision, it shall immediately notify the Council about it, i.e. within eight days starting from the day the control has been exercised, the latest.
The Decisions Ordering Measures
Article 68
If the market participant does not obey the measures and deadlines defined in a decision mentioned in the Article 8 paragraph 2 and the Article 19 paragraph 2 of the present Law, the Commission may make a decision ordering measures against such a market participant, as follows:
1) it may temporarily forbid turnover of certain goods and/or services on the relevant market, for no longer than three months;
2) it may temporarily forbid performing certain activities for no longer than four months, if in spite of a ban mentioned in item 1) of the present Article market participant continues turnover of goods and/or services on the relevant market.
Article 69
The Commission’s decisions shall be published in the "Official Herald of the Republic of Serbia".
Decisions containing data featuring state, military, official or business secret shall be published without such data.
The Request to Initiate the Misdemeanor Procedure
Article 70
The Law defining misdemeanors shall be applied in the misdemeanor procedure.
The Commission shall submit the request to initiate the misdemeanor procedure to the competent misdemeanor body against the market participant who performed the activity preventing, limiting and disturbing the competition.
The Misdemeanors
Article 71
The market participant shall be fined for a misdemeanor from 1 to 10% of the total annual income made in the previous clearing year, for the following activities:
1) if it concludes or implements the forbidden agreement (the Article 7);
2) if it does not implement measures ordered by the decision defining agreement prohibition or abuse of the dominant position (the Articles 8 and 19);
3) if it abuses the dominant position on the relevant market (the Article 18);
4) if it exercises the concentration without the decision granting such a concentration (the Article 23);
5) if it exercises the concentration based on the decision granting the concentration, if such a decision was made due to untrue data or inaccurately represented facts (the Article 29 paragraph 1);
6) if it does not proceed according to the decision mentioned in the Article 63 paragraph 2;
7) if it does not proceed according to the decision mentioned in the Article 68.
If an agreement essentially preventing, limiting or disturbing the competition is concluded or executed by a business association, the total annual income made in the previous clearing year of all market participants who happen to be members of such an association shall be taken into account for the purpose of defining the amount of the fine.
A fine against business association may be separately collected from association members, if the association is incapable of paying or does not have its own property.
A responsible person within the legal entity shall be fined from 1 to 10% of the total annual income calculated in accordance with regulations dealing with income tax for the previous clearing year, for a misdemeanor mentioned in paragraph 1 of the present Article.
The fine shall not be pronounced to the agreement participant mentioned in the Article 7 paragraph 1 of the present Law, nor to the responsible person, if such a participant files a report to the Commission the agreement and its participants do exist, providing such a motion was initiated before the conclusion on initiating the procedure against it has been adopted.
Article 72
The market participant shall be fined for a misdemeanor from 1 to 3% of the total annual income made in the previous clearing year, for the following activities:
1) if it does not file a report on agreement that may be exempted from a ban (the Article 15);
2) if it does not proceed according to the Commission’s request to deliver or announce requested data or if it delivers or announces inaccurate, incomplete and false data (the Article 55).
A responsible person within the legal entity shall be fined from 1 to 3% of the total annual income calculated in accordance with regulations dealing with income tax for the previous clearing year, for a misdemeanor mentioned in paragraph 1 of the present Article.
Article 73
The market participant committing a misdemeanor mentioned in the Article 71 paragraph 1 of the present Law shall be pronounced a protective measure of deprivation of items and ban from performing certain activities.
A responsible person within the legal entity committing a misdemeanor mentioned in the Article 71 paragraph 1 of the present Law shall be pronounced a protective measure of a ban from performing certain duties.
Article 74
The statute of limitations to prosecute misdemeanors mentioned in the Article 71 paragraphs 1 and 4 of the present Law shall come into effect when five years pass from the day the misdemeanor was committed.
The statute of limitations to prosecute misdemeanors mentioned in the Article 72 of the present Law shall come into effect when three years pass from the day the misdemeanor was committed.
V TRANSITIONAL AND FINAL PROVISIONS
Article 75
Authorized proposers shall propose candidates for the Council members to the Parliament within 30 days starting from the day the present Law comes into effect.
If some of the authorized proposers do not propose candidates within the deadline mentioned in paragraph 1 of the present Article, the Government shall do it instead of the authorized proposer within the next 15 days.
The Parliament shall appoint the Council members within 60 days starting from the day the deadline for proposing candidates expires.
The Council members shall appoint the President of the Council within 15 days starting from the day the Council members have been appointed.
The Council shall within 30 days from its constituency adopt the Statute and deliver it to the Government for a consent.
The Commission shall commence its work on the day the Council is constituted.
On the day it commences its work, the Commission shall take over employees from the Ministry of Trade, Tourism and Services dealing with prevention of monopoly activities, as well as files, archive, equipment and labor instruments related to this job.
Until the day the Commission commences its work, the ministry in charge of trade affairs shall perform duties related to the competition protection.
Article 76
All the procedures initiated in accordance with regulations that cease to exist on the day the present Law comes into force shall end in accordance with the present Law.
Article 77
On the day the present Law comes into force, the Antimonopoly Law ("Official Gazette of the FRY", No.29/96) shall cease to exist.
Article 78
The present Law shall come into force on the eighth day following the day of its publication in the "Official Herald of the Republic of Serbia".