This instruction shall regulate in more detail the content and method of submitting a request for determining the measure of protection of data sources and/or specific data, prescribed by the provisions of Article 45 of the Law on Protection of Competition (for the purposes of this instruction: request for data protection).
Data protection implies that the protected data will not be publicly published, that is, that they will be omitted from the decisions and acts of the Commission for the Protection of Competition that are publicly published, as well as that they cannot be viewed or copied when inspecting the case files, regardless of whether they are in printed or electronic form, in Serbian or a foreign language of the original document.
Protected data shall not have the property of information of public importance in the sense of the law regulating free access to information of public importance.
The Commission for Protection of Competition of the Republic of Serbia has adopted a new Instruction for detecting bid rigging in the public procurement procedure, in the light of the new legal solutions (Law on Public Procurement, amendments to the Criminal Code) that were adopted after the 2011 Instruction.
The Commission for Protection of Competition recognized the need to emphasize and raise the level of awareness among market participants about the need and ways of business compliance with current regulations and regulations in the field of competition protection.
The aim of issuing the Instruction is to prevent and foil the implementation of “rigged or falsified offers” (bid rigging), as the most severe forms of cartels. The consequence of such agreements between competitors – bidders regarding the offered price is the elimination of competition between them, which is why the contracting authority would pay more for the subject of procurement than it would pay under the conditions of competition.
The OECD Guidelines for Combating Bi Rigging in Public Procurement and the Notice of the European Commission in accordance with the needs of cooperation between the Commission and the Public Procurement Office were used in the preparation.
Obligation to file a merger notification
Article 61
Mergers are to be notified to the Commission if:
1) the combined aggregate annual worldwide turnover of all participating undertakings in the preceding financial year exceeds 100 million euros, provided that the domestic turnover of at least one participating undertaking is more than 10 million euros;
2) the combined aggregate annual domestic turnover of at least two participating undertakings in the preceding financial year exceeds 20 million euros, provided that the domestic turnover of each of at least two participating undertakings is more than 1 million euros in the same period.
The aggregate annual turnover referred to in Paragraph 1 herein shall not count against the turnover generated by these undertakings in a reciprocal exchange.
Merger implemented through a takeover bid within the meaning of regulation governing takeover of joint stock companies, must be notified even if the conditions referred to in Paragraph 1 herein are not fulfilled.
Merger parties
In the case of a merger referred to in Article 17(1/1) of the Law on Protection of Competition (Official Gazette of the RS 51/09 and 95/13, hereinafter – the Law), the parties to the merger are understood to be all undertakings involved in the status change.
In the case of a merger referred to in Article 17(1/2) of the Law, the parties to the merger are understood to be the undertaking acquiring direct or indirect control (acquirer of control or notifying party pursuant to Article 63(3) of the Law) and the undertaking or a part of an undertaking over which control is acquired. Regarding the applicability of said article, i.e. determination of requirements for merger notification, the acquirer of control is the whole group of companies within which the notifying party operates and is a part thereof within the meaning of Article 5 of the Law.
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The Commission for Protection of Competition during the previous period has received a great number of initiatives for initiation of proceedings for infringement of competition, related to bid rigging in public procurements.
In order to establish a future practice, and with the goal of enabling a higher level of legal security and transparency, the Commission presents the view on the implementation of Article 10 of the Law on Protection of Competition in the case of affiliated undertakings in the public procurement procedures.
Every undertaking that uses the option of submitting notification of concentration based on a genuine intent for implementation of concentration, i.e. for the conclusion of an agreement, can do so during any period of time following formal expression of such intent (by signing of a letter of intent, memorandum, compliance of wills, or in other manner that precede the act stated in Article 63, Paragraph 1 of the Law on Protection of Competition).
In those cases, notifying party shall not be imposed a measure of procedural penalty if it fails to notify concentration within the time limit, as stipulated in Article 63, paragraph 1 of the Law.
