A new decree on the content of merger notification ("Merger Decree") is effective in Serbia from today, 2 February 2016. Our readers may remember that we blogged on this topic when the draft decree was out for comments. Templates for both long-form and short-form merger notifications are already on the web-site of the Serbian Commission for Protection of Competition. The Commission welcomed the new Merger Decree by announcing its openness to holding pre-notification meetings with the aim of clarifying issues related to the implementation of the new regulation.
The new Merger Decree introduces a simplified (short-form) notification for concentrations unlikely to give rise to competition concerns. Specifically, short-form notification is allowed in the following cases:
- acquisition of (sole or joint) control:
- where the parties to the concentration are not active on the same relevant product market and the same relevant geographic market and none of the parties to the concentration is active on the upstream or downstream market at which the other party is active;
- in case of horizontal mergers where the activities of the parties overlap, the combined market share of the parties to the concentration is less than 20%;
- in case of vertical mergers, the combined market share on the relevant market on which either of the parties to the concentration is present is less than 30%;
- transformation of joint control into sole control;
- if the combined market share of all parties to a horizontal merger is below 40% and the incremental increase in post-concentration HHI is less than 150.
However, the Commission may, when it reasonably suspects that the concentration may give rise to competition concerns, require long-form notification even if the formal conditions for short-form notification are met. This may happen, in particular, when:
- there are no precedents on the definition of the relevant market;
- the concentration takes place on an emerging market;
- a party is new to, or not yet on the market;
- the relevant market is highly concentrated (HHI ≥ 2000) and the incremental post-concentration increase in HHI is ≥ 150;
- the concentration involves a transformation from joint control to sole control by integrating a former joint venture into the group and/or network of its remaining single controlling shareholder, whereby the disciplining constraints exercised by the potentially diverging incentives of the different controlling shareholders are removed and its strategic market position could be strengthened as a result, and
- change from joint control to sole control where the acquisition of joint control had not been reviewed by the Commission.
Standard notification procedure is obligatory also when a party to the concentration has requested the Commission to undertake an express assessment of the restrictions claimed to be directly related to, and necessary for, the implementation of the concentration.
While the new Merger Decree does away with certain notification content requirements, such as the data of the employees of the parties to the concentration, harmonization with the so-called Form CO requirements of the European Commission resulted in more detailed market information requirements. Amongst other new requirements, where any of the parties to the concentration has production facilities in Serbia, the notification should provide an estimate of the total production capacity in Serbia on the relevant market, an estimate of the party's share in such production capacity and the data on the production capacity, location and utilization rate of the party's own production facility.
Reasoned elaboration on planned R&D and expected efficiency gains is not obligatory part of the notification but is advised when the filing party alleges specific importance of R&D for the long-term competitiveness on the relevant market or efficiency gains resulting from the concentration.