The conclusion of restrictive agreement introduced as a criminal offence in Amendments to the Serbian Criminal Code

Serbia

On 23 November 2016 Serbian Parliament adopted the Amendments to the Criminal Code as well as a set of judicial laws.

1. Amendments to the Criminal Code

Apart from introducing some minor changes to the general provisions of the Criminal Code and criminal offences regarding combating violence against women and domestic violence, the newest amendments to the Criminal Code are primarily focused on criminal offences against economic interests: there are now 29 offenses against economic interests in total (instead of previous 25), out of which there are seven new offenses, while the three existing offenses have been decriminalized (abuse of authority in the economy, issuing a check and use of payment cards without coverage and misleading a customer).

2. The conclusion of restrictive agreement as a criminal offence

The previous version of the Criminal Code contained the criminal offence "abuse of monopolistic position", which in essence prescribed that a responsible person in a company or other commercial entity (a/n undertaking), who by abuse of monopolistic or dominant market position or by concluding monopolistic agreement causes market disruption or places that entity into a more favourable position in relation to others, thus acquiring material gain for that or other entity or causing damage to other commercial entities, consumers or users of services, shall be sentenced from six months to five years in prison and fined.

Unlike the previously prescribed criminal offense that could have been committed through (i) abuse of monopolistic or dominant position in the market or (ii) conclusion of monopolistic agreements, the Criminal Code in Article 229 now prescribes the new criminal offence - "conclusion of restrictive agreement" which supersedes the previous criminal offence - "abuse of monopolistic position".

The new criminal offence incriminates any person in a commercial entity (a/n undertaking) that concludes a restrictive agreement, not exempted from the prohibition under the competition protection legislation, that fixes prices, limits production or sales or divides markets.

Although the sanctions remain the same (imprisonment from six months to five years and fines), there are several important novelties:

  • only the conclusion of the restrictive agreement that is not exempted from prohibition pursuant to the Law on Protection of the Competition ("Official Gazette of RS" no. 51/2009 and 95/2013), which fixes prices, limits production or sales or divides markets is incriminated.
  • Dominance abuse is apparently decriminalized.
  • The Criminal Code now provides for a possibility of abolishment of sanctions for this particular criminal offence should the offender qualify for the abolishment of fine under the antitrust rules (i.e. in case of a successful leniency application under article 69 of the Law on Protection of Competition).

Therefore, from the wording of the new criminal offence, it appears that this criminal offence is narrower (as it is limited only to infringements in form of the restrictive agreements and it does not cover infringements in form of the dominance abuse) and more favourable for the offender (as it introduces the possibility of abolishment of fines).

3. Entry into force

A great majority of the provisions of the Criminal Code, including article 229 ("conclusion of restrictive agreement"), will come into force as of 1 June 2017.