As the year-end approaches, the Serbian Commission for Protection of Competition has increased its enforcement activity. In the course of one week, it has launched three gun-jumping investigations and one abuse of dominance investigation.
Gun-jumping investigations
Serbian acquisitions
In late October and early November 2022, two investigations were launched against the Serbian company Dobergard, a company engaged in provision of security services, on the allegations that it had acquired in the course of 2021 two Serbian companies without notifying the concentrations to the authority. The acquisitions were discovered by inspection of the Commercial Register, which recorded changes of ownership over the two targets. The authority then established that the owner of the acquirer Dobergard has other fully-owned entities in Serbia which together with him and Dobergard constitute a single market participant. It then inspected publicly available 2020 financial statements of the entities under the control of Dobergard’s owner, on the one hand, and each target on the other hand, and established that the notification turnover thresholds were met. Specifically, it established that the parties to each concentration generated in 2020 a combined turnover of more than EUR 20 million and that each party generated Serbian turnover in excess of EUR 1 million.
Outbound acquisition
The third gun-jumping investigation is against the Serbian e-commerce platform Ananas. The allegation is that Ananas acquired in September 2022 Macedonian company Вебспот доеел from Skopje without notifying the concentration to the Serbian authority. The Serbian Commission for Protection of Competition outlined in its decision on the initiation of investigation how it discovered this acquisition. It noticed on the website of Ananas’ parent Delta Holding doo Belgrade a press release announcing that Ananas acquired from the company Payten the websites Grouper and Paopao in Macedonia and thus Grouper.mk and Paopao.mk. e-commerce brands. (Earlier, several business news outlets in Serbia and Macedonia reported on the intended transaction.) Following the press release, the Serbian authority checked the website of the Macedonian Commercial Register and established that a change of ownership in the Macedonian company Вебспот had been registered in favour of Ananas. The Serbian competition authority proceeded to inspect the website of its Macedonian counterpart and established that the relevant concentration had been reported to the Macedonian competition watchdog. Based on 2021 accounts, the Serbian competition authority established that Delta Holding had in 2021 a consolidated world-wide turnover in excess of EUR 100 million and a consolidated Serbian turnover in excess of EUR 10 million and concluded that the concentration was notifiable in Serbia.
Abuse of dominance
The Serbian Commission for Protection of Competition dawn-raided Glovo Technology d.o.o. Belgrade on 3 November 2022 on the allegations of abuse of dominance. This investigation was prompted by a complaint the authority received in the course of an ongoing market study into the sector of online food delivery platforms.
The Commission established on a preliminary basis that following the acquisition of the competitor Donesi in 2021, Glovo has become a dominant player on the market of food delivery digital platforms. Nevertheless, its decision to launch investigation over Glovo’s practices states that the timeframe of the suspected abuse of dominance is since the establishment of Glovo in June 2019.
The complaint that prompted the investigation alleges that Glovo offers incentives to its partners in exchange of exclusivity. In the decision to initiate the investigation, the Commission refers to the following practices it considers exclusionary: certain Glovo’s contracts with restaurants, as well as its general terms and conditions, contain provisions obliging Glovo’s partner to make certain payments to Glovo, or repay Glovo’s investment in marketing, if the partner enters into co-operation with a competing platform. The authority also alleges that the conditions for early termination of contract by the partner are onerous – a restaurant may terminate only after the expiry of first 12 months and then only subject to a 120-day termination notice or else is subject to a contractual penalty.
The Commission also alleges that Glovo charges lower commission to restaurants who opt to cooperate exclusively with Glovo, which, according to the Commission, could constitute discriminatory practice of applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.
Conclusion
Based on publicly available information, the Serbian Commission for Protection of Competition has so far in 2022 launched two investigations into alleged RPM practices (in the areas of distribution of Apple products and distribution of ceramic tiles, respectively), one abuse of dominance investigation and three gun-jumping investigations. In 2021, it launched one cartel investigation (wholesale of ground coffee), one abuse of dominance investigation (textbooks for elementary school education), and extended two earlier RPM investigations against wholesalers and retailers of consumer electronics. All mentioned restrictive agreements and abuse of dominance investigations have been prompted by insights obtained in the course of sectoral analysis conducted by the authority.
The foregoing statistics demonstrate that the Serbian authority is stepping up its enforcement activity in all areas of antitrust. Historically, RPM and bid rigging have formed major part of the Serbian competition authority’s investigation portfolio but the latest investigations signal that the portfolio is becoming more balanced and sectoral analyses prove to be fertile basis for investigations. Low merger notification thresholds will continue to haunt acquirers as the authority has visibly increased its activity in the area of ex post merger control.
