The COVID-19 pandemic has been heavily affecting economies and countries across the globe. In such circumstances, ensuring the undisturbed work of the competition authorities is difficult, but important in order to soften the impact of the pandemic on businesses and market competition. Changes in behaviour have been implemented throughout public institutions and competition authorities in the West Balkans are no exception – they needed to adapt to the current situation and continue to execute their competencies. Hereinafter we share a brief insight into the current merger control work of the competition authorities in Serbia, Bosnia and Herzegovina, North Macedonia, Montenegro, Croatia, Slovenia, and Albania.
The current merger control situation, as of 17 April 2020, at the West Balkans competition authorities is as follows:
- all regional competition authorities are operational and responsive, although working remotely and/or with reduced capacities;
- competition authorities are accepting merger filings both in hard copy and electronic forms;
- the 15-day filing deadlines in Serbia, Montenegro, and Bosnia, and Herzegovina still apply, as well as the 30-day filing deadline in Albania, while the 30-day filing deadline in Slovenia has been suspended during the pandemics;
- the applicants in Serbia cannot be fined for breaching deadlines during the state of emergency, which is not the case in Bosnia and Herzegovina and Montenegro – in those two jurisdictions the applicants still can be fined if they miss the deadline;
- parties could expect delays in the issuance of clearance decisions;
- some authorities are encouraging parties to postpone filings, such as the Slovenian competition authority although this is an exception rather than a rule in the Western Balkan countries;
- internal meetings of competition authorities are being organised less frequently during pandemics and some authorities have already switched to online meetings, such as the Albanian competition authority;
- an increased focus on antitrust matters rather than merger control is noticeable in some jurisdictions (e.g. Serbia);
- certain jurisdictions have adopted regulations on the treatment of statutory deadlines which are applicable for the duration of state of emergency, such as Serbia, North Macedonia and Slovenia (similar regulation is in the pipeline in Bosnia and Herzegovina);
- it is reasonable to expect that the authorities will not invest much effort in complex economic analysis, for the time being, as the current situation hinders the collection of information from third parties and productive communication with the other state authorities.
The national state of emergency was announced on 15 March 2020 and since then the Serbian NCA has been working remotely. The authority’s Council did not convene for a while, and it is yet to be seen whether they will switch to online meetings as a response to the current situation.
The authority accepts merger notifications, which could be filed either by post or via email. However, filings exceeding 100Mb need to be submitted either by hand (i.e. personally) or via post.
The review process is somewhat delayed, but the authority continues to issue merger clearance decisions in the summary proceedings (Phase I) fairy efficiently while certain delays are possible in in-depth cases (Phase II). Since the beginning of the pandemics, the authority seems to have established an informal internal system of issuing clearances once a week – on Fridays.
The recent regulation of the Serbian Government on statutory deadlines in administrative proceedings (effective as of 24 March 2020) provides that the statutory deadlines applicable to the competition authority (e.g. for the issuance of clearance decisions) which elapse during the state of emergency will be deemed to have elapsed 30 days after the termination of the state of emergency.
On the other hand, the statutory deadlines applicable to the parties are not suspended during the state of emergency, but the parties will not suffer any sanctions for their late submissions (e.g. fines for late filing). Hence, the 15-day merger filing deadline still applies, but if the deadline expires during the state of emergency and the applicant does not submit the filing within the deadline – the applicant cannot be fined for missing the deadline.
The parties should be cautious to file within the 15-day deadline once the state of emergency is over which may have already expired at that point meaning that an expedient and premeditated action by interested parties may be required.
Bosnia and Herzegovina
The Bosnian NCA is working with reduced capacities, with the case handlers working in shifts.
Merger notifications can be filed in Bosnia and Herzegovina – either by post or via email.
The 15-day filing deadline still applies. Nevertheless, the Council of Ministers is preparing the regulation according to which the statutory deadlines in the administrative proceedings could be postponed during the pandemics. The regulation is expected to become effective as soon as possible, presumably in the course of April.
The review process has been significantly delayed, as the Competition Council rarely holds its decision-making meetings. Previously the Council would hold at least two meetings a month, which has now been decreased to a single meeting once a month.
The NCA of North Macedonia is working with reduced capacities. The authority accepts merger notifications that can be filed either at the NCA’s reception desk (until 13:00 CET), via post office or by email.
On the other hand, the NCA will not be issuing merger clearances during the state of emergency that is currently in force in North Macedonia. The state of emergency was initially enacted to last until 18 April, however, the Government of North Macedonia extended it for an additional 30 days. During the state of emergency, the NCA will not be organizing online meetings decreasing the authority’s activities to a minimum.
Pursuant to the Regulation on the Applicability of the Law on General Administrative Procedure (effective as of 24 March 2020), the applicable deadlines cannot expire during the state of emergency. If a deadline was to expiry in this period, it will automatically be extended for the number of remaining days of the suspended deadline.
However, the mentioned Regulation allows parties a leeway to file a reasoned request urging the authority to issue a merger clearance during the state of emergency leaving it at the full discretion of the authority to decide whether or not it will actually do so. The NCA did not yet issue any decision on the basis of such a request and it is yet to be seen how the authority would act should the parties decide to use this option.
The Montenegrin NCA is working remotely and with reduced capacities. Nevertheless, the authority is operational and case handers are responsive.
The 15-day filing deadline still applies. Merger notifications can be submitted in Montenegro, either by post or via email.
The authority did not suspend the issuance of merger clearances, but the review process has been somewhat delayed.
Despite working with reduced capacities, the Croatian NCA is operative – merger notifications can be submitted either by post or via email. The NCA did not suspend its merger-review process either, but the review process is somewhat delayed due to the pandemic.
In addition, the authority issued an official statement on their website that the partiers could not approach the NCA’s premises until 30 April.
It is also worth noting that the Croatian NCA has recently published a statement indicating that it will fully comply with the Joint statement by the European Competition Network (ECN) on the application of the competition law during the Corona crisis.
The Slovenian NCA is also working with reduced capacities.
The 30-day filing deadline does not apply during the pandemics. What is more, all the statutory deadlines are currently stayed until 1 July 2020.
The filings can be submitted either by post of via email. The NCA released a public statement encouraging the undertakings to postpone submissions of merger notifications as much as possible, as it is currently short-staffed due to the pandemics.
It is expected that the review process will be longer than usual due to the pandemic. The NCA noted that it will inevitably face difficulties in efficiently obtaining information from third parties, such as customers, competitors, and suppliers.
Same as the Croatian competition authority, the Slovenian NCA released a statement on full compliance with the Joint statement by the European Competition Network (ECN) on the application of competition law during the Corona crisis.
The Albanian NCA is working remotely and is accepting merger notifications.
The NCA has stated that all meetings and hearing sessions will be postponed for the month of April. Nevertheless, as of mid-April 2020, the authority started issuing merger clearance decisions adopted during its online sessions.
In addition, the authority has also taken some urgent decisions during the recent period, primarily related to pharmaceutical and food markets, in order to prevent the increase of prices on the Albanian market.