On 16 July 2013, the Government of Serbia submitted to the Parliament its proposal of the amendments to the Law on Protection of Competition. We wrote on this blog on the first draft proposal of the amendments, published in April 2013. The bill that reached the Parliament contains some notable modifications to the initial draft.
Existence of dominance
The bill dispenses with the presumption of dominance for undertakings holding 40% or a larger share of the relevant market. The fact that an undertaking’s market share exceeds 40% is only one of the factors to be taken into account when establishing whether the undertaking is dominant. It is now explicitly provided that the burden of proof concerning the existence of dominance is in all cases on the Commission.
Commitments
The bill modifies the commitment procedure that was proposed in the April draft. To start with, the bill now correctly refers to this procedure as “commitment procedure” and not as “settlement”. The party may submit its proposal of commitments to the Commission before it receives the Commission’s statement of objections, whereas the initial draft foresaw that a proposal could be submitted within one year from the commencement of the investigation or until the expiry of the deadline for a response to the statement of objections, whichever is earlier. The bill also introduces market test of the proposed commitments. The Commission shall publish a commitment proposal on its website and invite interested parties to comment within 20 days of the publication. If, following the receipt of the comments, the Commission establishes that the offered commitments are acceptable, it shall issue a decision on behavioral/structure measures based on the party’s proposal. The proceedings may be resumed within three years from the issuance of the Commission’s decision on suspension of proceedings in case the circumstances based on which the commitment decision was adopted significantly change, the party does not fulfill its commitment obligations or does not deliver adequate proof of their fulfillment, or if the Commission establishes that the commitment decision was adopted based on incorrect, untrue, incomplete or misleading information submitted by the party.
Judicial review
One of the most controversial amendments proposed in the April draft was a shift of competence in judicial review proceedings from the Administrative Court to the Commercial Court of Appeals. However, the version adopted by the Government abandons this proposal, leaving the competence of the Administrative Court in this matter intact.
Statute of limitations
In line with the April draft, the bill submitted to the Parliament envisages the extension of the statute of limitations for the imposition of fines from three to five years from the infringement, while the absolute statute of limitations expires upon ten years from the act constituting infringement. A separate five-year statute of limitations applies to the collection of the fine and it starts running from the date when the Commission’s decision imposing the fine becomes final and enforceable, the absolute statute of limitations being ten years from that date. A significant improvement to the April draft is in the provision stipulating that, with respect to the proceedings initiated prior to the entry into force of the amendments, the statute of limitations prescribed by the current law (three years from the infringement) continues to apply.
