Adopted on March 24, 2020 and amended two days later, the Decree concerning time limits in administrative proceedings during the state of emergency (“Decree”) applies to all administrative procedures including those before Serbia’s national competition authority (“NCA” or “Commission”). In that regard, the NCA has published a Notification on Deadlines During the State of Emergency (“Notification”).
Wishing to protect both the interests of parties and public interest, the Commission has explained what changes the Decree introduces with respect to merger control, individual exemptions of restrictive agreements and other procedures governed by the Competition Act.
What happens to time limits imposed on parties?
In line with the Competition Act, parties shall notify their mergers within 15 days of (i) the date of conclusion of an agreement, (ii) announcement of a public invitation, or (iii) acquisition of control. However, the Decree stipulates that parties to administrative proceedings who fail to act within the statutory time limits during the state of emergency will not face any negative consequences. Thus, parties failing to submit merger notifications within the 15-day time limit will not be considered liable.
This gives rise to the question: How long will parties have to wait until they can proceed with the merger? Although free from liability regarding time limits, parties remain bound by all the obligations stipulated under the Competition Act. Hence, rather than risk jumping the gun, notifying parties will have to put mergers on hold until the NCA rules on them.
Moreover, in its Notification, the NCA explains that parties shall not be deemed liable if they fail to act within the time limits set out in NCA decisions. For example, if time limits for paying penalties or measures for the protection of competition expire during the state of emergency, parties are not obliged to act within the deadlines. This relates to party-requested and ex officio proceedings.
What happens with non-extendable time limits?
In the case of non-extendable time limits that start to run after service of an NCA decision, legal fiction applies that those decisions have been served 15 days from the date the state of emergency is lifted. For instance, a party wishing to file a lawsuit against a final and binding NCA decision will be able to do so within 30 days of the 15th day after the state of emergency has been lifted.
What happens with time limits for administrative actions?
According to the Decree, time limits expiring during the state of emergency, and which concern (i) administrative actions, (ii) conclusion of administrative procedures will be deemed expired 30 days after the state of emergency is lifted.
Practically, if a four-month or one-month time limit for clearing the merger expires while the state of emergency is still in place, the NCA will have to issue its decision within 30 days of the date the state of emergency is lifted. Likewise, a 60-day time limit expiring during the state of emergency for granting an individual exemption to a restrictive agreement will be deemed expired 30 days after the day the state of emergency is lifted.
Finally, the Competition Act establishes the presumption that a merger has been cleared where the NCA fails to issue a decision within the statutory time limit. In line with the Decree, and due to the state of emergency, the NCA has an additional 30 days after the state of emergency is lifted to decide on mergers.
The foregoing also applies to competition infringement complaints. Namely, the NCA must inform the complainant about the outcome within 15 days, but in the present case, the NCA has 30 days after the state of emergency is lifted in which to do so.
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