Competition and state aid

2005

In particular, Serbia and Montenegro, through operationally independent public authorities/bodies, would have to prohibit and police i) all agreements between undertakings and concerted practices which prevent, restrict or distort competition; ii) abuse by one or more undertakings of a dominant position, iii) any state (public) aid which distorts or threatens to distort competition by favouring certain undertakings or certain products. Serbia and Montenegro would also commit themselves to apply these rules to public undertakings and undertakings with special rights, to adjust state monopolies of a commercial character so that no discrimination exists regarding the conditions under which goods are procured and marketed, and to ensure transparency in the area of state (public) aid by establishing comprehensive inventories of aid schemes and by reporting annually to the European Commission on the total amount and the distribution of the aid given, and by , upon request, providing information on particular cases.

As to the control of state aid, full transparency, legal frameworks and institutions still need to be established in both Republics, As regards transparency, progress has been very slow towards setting up the necessary structures for coordination (e.g. within the Ministry of Finance) and information gathering, as well as towards establishing a comprehensive aid inventory and reporting system for all aid measures in force, based on an EU-harmonised state aid definition. [1]

Both Republics need to ensure fully independent competition authorities which are equipped to ensure efficient enforcement practice, giving priority to cases with a serious effect on the market and ensuring deterrent sanctioning of infringements. Both Republics also need to develop their competition advocacy, by adopting a coherent horizontal approach to promote competition policy in the fields of market liberalisation, privatisation, restructuring, the screening of draft legislation regarding competition aspects, improved public procurement practices and an overall strengthening of the rule of law, as well as by raising the awareness of competition rules and their economic benefits.[2]

Montenegro and Serbia need to strengthen their new state aid structures and ensure full transparency, by establishing a comprehensive aid inventory and reporting system for all aid measures in force, based on an EU-harmonised state aid definition.[3]

Both Serbia and Montenegro have yet to establish stable, transparent and predictable conditions for foreign investors but improvements have been registered.[4]

Although a specific agency for SME development (SMEDA) exists, a permanent, formal and transparent system or institution for dialogue with the SME sector still needs to be developed.[5]

2006

In the area of anti-trust, the Law on the Protection of Competition entered into force on 1 January 2006. A set of by-laws on the definition of the relevant market and the form and content of the merger notifications has also been adopted. The Law envisages a department within the Ministry of Economy as a supervisory authority. This department has already dealt with certain cases of mergers, abuse of dominant position and anti-competitive agreements. Montenegro has to ensure that this department is operationally independent and disposes of appropriate resources.

In view of future commitments under the Stabilisation and Association Agreement, Montenegro needs to strengthen its state aid structure. It needs to set up a system of ex ante control of all new aid measures and alignment of existing aid measures, through an operationally independent state aid authority, with the power to authorise or prohibit all aid measures and to order recovery of unlawfully granted aid. [6]

2007

In the area of anti-trust, Montenegro has made some progress. In line with the European Partnership priorities, the January 2006 Law on competition protection was amended in May 2007. The new law provides for the establishment of an operationally independent competition authority, the Directorate for Competition Protection, to replace the department for protection of competition within the Ministry of Economic Development, which employs five experts. A set of by-laws has been adopted, laying down the conditions for issuing group exemptions and the procedure for obtaining individual exemptions. The competition protection department has already assessed a number of concentrations and opened investigations with regard to anti-competitive agreements by undertakings. A system has yet to be established for imposing effective deterrent fines.

A state aid law has been approved and entered into force in May 2007. Adoption of by-laws giving details of the criteria, purposes and conditions for granting state aid and the methods and procedures for control and reporting is still pending. The state aid control commission, to be established under the new law, would be appointed by the government and would consist of representatives from various ministries, with powers to authorise the granting of aid and order recovery of unlawful aid and ex-post supervision.[7]

However, in view of forthcoming obligations under the Stabilisation and Association Agreement, Montenegro needs to make further improvements to its legislative framework and to set up operationally independent competition and state aid authorities[8]

2005

In particular, Serbia and Montenegro, through operationally independent public authorities/bodies, would have to prohibit and police i) all agreements between undertakings and concerted practices which prevent, restrict or distort competition; ii) abuse by one or more undertakings of a dominant position, iii) any state (public) aid which distorts or threatens to distort competition by favouring certain undertakings or certain products. Serbia and Montenegro would also commit themselves to apply these rules to public undertakings and undertakings with special rights, to adjust state monopolies of a commercial character so that no discrimination exists regarding the conditions under which goods are procured and marketed, and to ensure transparency in the area of state (public) aid by establishing comprehensive inventories of aid schemes and by reporting annually to the European Commission on the total amount and the distribution of the aid given, and by , upon request, providing information on particular cases.

As to the control of state aid, full transparency, legal frameworks and institutions still need to be established in both Republics, As regards transparency, progress has been very slow towards setting up the necessary structures for coordination (e.g. within the Ministry of Finance) and information gathering, as well as towards establishing a comprehensive aid inventory and reporting system for all aid measures in force, based on an EU-harmonised state aid definition. Serbia has, however, recently taken a first step by adopting a state aid report, but still needs to formalise and improve its ad hoc structures. Gradually, the SAA obligations will require an ex-ante control of all new aid measures and the alignment of existing aid measures, by operationally independent State aid authorities in both Republics, with the power to authorise or prohibit all aid measures and to order recovery of unlawfully granted aid.[9]

Both Serbia and Montenegro have yet to establish stable, transparent and predictable conditions for foreign investors but improvements have been registered.[10]

Both Republics need to ensure fully independent competition authorities which are equipped to ensure efficient enforcement practice, giving priority to cases with a serious effect on the market and ensuring deterrent sanctioning of infringements. Both Republics also need to develop their competition advocacy, by adopting a coherent horizontal approach to promote competition policy in the fields of market liberalisation, privatisation, restructuring, the screening of draft legislation regarding competition aspects, improved public procurement practices and an overall strengthening of the rule of law, as well as by raising the awareness of competition rules and their economic benefits.[11]

Montenegro and Serbia need to strengthen their new state aid structures and ensure full transparency, by establishing a comprehensive aid inventory and reporting system for all aid measures in force, based on an EU-harmonised state aid definition.[12]

Although a specific agency for SME development (SMEDA) exists, a permanent, formal and transparent system or institution for dialogue with the SME sector still needs to be developed.[13]

2006

Following the adoption of the Law on Protection of Competition in September 2005, Serbia has established an independent competition protection body, the Commission for Protection of Competition, consisting of the Council, a decision making body, and an administrative service.[14]

Nonetheless, additional budgetary means would be required in order to help this body to properly fulfil its tasks. It should also be ensured that the fact that Competition Council members are not engaged fulltime and may have dual commitments does not lead to a conflict of interests. No enforcement practice has been reported so far.

In the field of the state aid control, Serbia has made a good progress by designating a separate unit within the Finance Ministry to deal with state aid monitoring and reporting. This unit, however, needs further capacity building and for that purpose more staff would need to be employed and trained. [15]

At present, there is no legal framework for State aid control in Serbia. Serbia needs to strengthen its State aid structure and to set up a system of ex-ante control of all new aid measures and alignment of existing aid measures, through an operationally independent state aid authority, with the power to authorise or prohibit all aid measures and to order recovery of unlawfully granted aid.[16]

2007

There was been limited progress in the area of competition. The Commission for the Protection of Competition (CPC) has been active during its first year of operations, dealing in particular with requirements for approval of mergers.[17]

It is important that the operational independence of the competition authority is assured.[18]

Serbia has not yet established an operationally independent state aid authority in order to introduce a system of ex-ante control of all state aid measures and prepare the alignment of existing state aid measures with the SAA.[19]

2005

In summary, the establishment of the Bosnia and Herzegovina Competition Council and the adoption of a new Competition Law in July 2005 have been important developments and confirm ongoing anti-trust efforts. However, the capacity of the Competition Council should be enhanced if it is to fully implement its tasks. Efforts aimed at further aligning legislation with the acquis need to continue.

As regards state aid, Bosnia and Herzegovina should adopt the necessary State-level legislation to ensure the monitoring of state aid throughout the country and the preparation of a comprehensive state aid inventory.[20]

Transparency as regards state aid to enterprises is low and public involvement in the economy remains substantial. There is no established authority overseeing state assistance and no comprehensive inventory of state aid schemes.[21]

2006

Bosnia and Herzegovina is progressing steadily in the area of anti-trust control. The Competition Act adopted in July 2005 was a positive step. Further amendments (e.g. geographical market definition) remain necessary for alignment to the acquis.[22]

However, no improvements have been made in the area of state aid and there has been no monitoring or comprehensive information on the scope of state aid. The state level has no competence in this field and state aid is mainly provided by several lower levels of government with little transparency.[23]

There is still no significant development with regard to state aid. Relevant legislation has not yet been developed and there is no State-level body responsible for the monitoring of aid given from the public budget. As a result, a comprehensive inventory of state aid schemes has yet to be established. [24]

2007

Further progress has been made in the area of anti-trust control. However, the 2005 Competition Law still requires further alignment with the acquis, in particular to ensure that services are covered by the legislation.[25]

Some progress has been made on enhancing transparency on State aid by compiling a preliminary state aid inventory for 2004-2006.[26]

The necessary legislation and the establishment of an operationally independent state aid monitoring authority remains outstanding. [27]

2005

UNMIK Regulation 2004/44 of October 2004 on the Law on Competition defines competition policy for Kosovo and takes a first step towards the development of a sound market economy in Kosovo by prohibiting acts that restrict, suppress or distort competition. The Law provides for the establishment of a Kosovo Competition Commission. Kosovo should pay increased attention to applying competition principles in its economic regulations and decisions.[28]

2006

Little progress can be reported in the area of competition and state aid. In the area of antitrust, the Kosovo competition council is in the process of being established.[29]

2007

2005

Progress has been made in establishing competition policy. However in order to serve market needs in an appropriate manner and to ensure open, transparent and competitive operating conditions for companies and to protect market and consumers’ interests much more should be done to increase an overall understanding of the principles of competition. In addition the existing legislation needs to be improved further to make competition control effective. The adoption of the Law on State Aid in April 2005 was a positive step, however overall the legal framework of the state aid legislation and of its implementing regulations needs to be reviewed and improved.[31]

Despite progress in adopting a legislative framework, legislation in this area needs to be further improved to make competition control effective. Efforts are needed to ensure that state aid and competition issues are covered by consistent and complementary legislation and that an operationally independent State Aid Authority is established.[32]

2006

A legal amendment prevents the owners of electronic media from participating in public sector tenders. This could present problems from the acquis point of view in terms of business competition. Nevertheless, it is a strong anti-corruption measure and should contribute to media freedom.[33]

Some progress can be reported in the area of anti-trust. The Competition Authority (ACA) has issued regulations and explanatory guidelines on the control of concentrations, immunity from fines and horizontal and vertical agreements. It also started to assess mergers and acquisitions notified to it. As regards enforcement, the ACA is proceeding with two major files, regarding mobile telephony and car insurance at border crossings, respectively.[34]

However, it is not clear yet to what extent the Competition Authority may work independently. Most of the staff is recently recruited and thus inexperienced, and the lack of resources means staffing targets have not been met.[35]

A State Aid Commission has been created as the decision-making body in this area. It has the power to authorise state aid schemes and individual aids, as well as to order the recovery of incompatible aid. It includes professionals in the field of law and economics who represent civil society or institutions which are not directly involved in providing state aid.[36]

2007

Some progress can be reported in the anti-trust field. The government approved a national competition policy document to serve as a guide for the establishment of free and efficient competition in the market. The document was the subject of a wide-ranging discussion with stakeholders.[37]

The Law on Competition is partially compatible with the acquis. However, it is not clear to what extent the ACA may work independently. Competition culture remains weak in Albania. The Competition Authority needs to be reinforced. The new posts need to be filled and additional training needs to be provided to its staff. [38]

There has been good progress in the area of state aid. The State Aid Department within the Ministry of Economy, Trade and Energy has been given independence in its reporting to the State Aid Commission (SAC). The SAC is the decision-making body for state aid. [39]

2005

In the area of anti-trust, including merger control, implementing rules for the Competition Act have been adopted, including several block exemption regulations (in the fields of vertical agreements, horizontal agreements, technology transfer, motor vehicles and insurance), a regulation on the notification and assessment of mergers, a regulation on the definition of relevant markets and a regulation on agreements of minor importance.[40]

The Competition Act of 2003 contains the basic rules on restrictive agreements, dominant position and merger control, but important further alignment is still necessary. In addition to the need for general fine-tuning of the provisions, a single competition regime still needs to be created by ensuring that the Competition Act applies to all sectors. The Government’s power to overturn decisions on the basis of Article 266 of the General Administrative Procedures Act should cease to be applied. [41]

Enforcement efforts should focus more on preventing the most serious distortions of competition, in particular in the field of prohibiting restrictive horizontal agreements and exclusionary abuses of dominant positions. It is also essential to introduce a system of fines that is sufficiently deterrent.[42]

2006

In the area of anti-trust, including merger control, the Competition Act of 2003 contains the basic rules on restrictive agreements, dominant position and merger control, but further alignment is still necessary. In addition to a need for a general fine-tuning of the provisions, a single competition regime still needs to be created to ensure that the Competition Act applies to all sectors, particularly banking and telecommunications. The Croatian authorities should exclude the possibility for the Government to overturn anti-trust decisions on the basis of Article 266 of the General Administrative Procedure Act.[43]

The enforcement record needs considerable strengthening, including economic and legal assessment. Enforcement should focus better on preventing the most serious distortions of competition, in particular in the field of prohibiting restrictive horizontal agreements and exclusionary abuses of dominant position. It is also essential that a whole new system for fining is introduced that allows for sufficiently deterrent sanctioning.[44]

2007

In the area of anti-trust, including merger control, the shortcomings identified in 2006 have not been addressed. Announced legislative changes needed to make anti-trust control more effective have not been adopted. In particular, an efficient system for imposing fines to allow CCA[45] decisions to have a deterrent effect, but also leniency and judicial control have not been remedied. Also, Article 266 of the General Administrative Procedure Act (GAPA), which allows the government to overturn anti-trust decisions, has not been repealed. There is also a need to ensure uniform application of the Croatian Competition Act by bodies other than the CCA which have powers with respect to anti-trust and mergers in specific sectors.[46]

The enforcement record should increasingly focus on preventing the most serious distortions of competition, in particular restrictive horizontal agreements and abuses of a dominant position. [47]

2005

Progress has been made regarding the adoption of appropriate and EU-compatible antitrust and State aid legislation. It is now important to adopt the relevant implementing legislation and to visibly enforce the antitrust and State aid rules. The country needs to promote competition by encouraging liberalisation, the improvement of public procurement practices, and an approach to privatisation designed to foster competition. To make the antitrust rules an effective tool, the Commission for Protection of Competition should be given efficient means directly to enforce the law and impose sanctions, including fines. The lack of administrative staff and adequate premises for the State Aid Commission limits its capacity to perform its task properly and should be addressed. Its ability to act independently should also be ensured. Transparency should be promoted by establishing a comprehensive inventory and reporting all aid measures in force. The large-scale non-payment of social security contributions and taxes by a large number of enterprises can lead to considerable distortions of competition and is incompatible with the internal market. Efforts need to be made to remedy this situation.[48]

However, there are indications that indirect State aid, in the form of accumulated payment arrears of taxes and social security contributions, leads to significant distortion of the competitive position of enterprises in the market.[49]

In addition, education and training for the staff need to be supported, transparent procedures for communication between the SAC[50], the CPC[51], the industrial policy unit of the Ministry of Economy and other relevant government entities established, procedures for handling cases and carrying out investigations improved, a system to monitor and evaluate the current structure of State aid developed, and awareness-raising campaigns organised and implemented.[52]

One particular problem with regard to the distortion of competition by State aid is the high degree of evasion of social security contributions and taxes, which impairs the establishment of a level playing field for companies. The widespread and systematic non-payment of social security contributions and taxes by many industrial companies leads to unfair competition and is not acceptable in a territory which is to be integrated into the internal market. [53]

2006

Furthermore, there is an overlapping of competences between the public prosecution service and the CPC in cases of violations of competition rules. According to the new Law on Misdemeanours, a criminal procedure conducted for an infringement of competition rules leads to the suspension of the infringement procedure before the CPC. This leads to the de facto non-application of competition rules and should be clearly avoided.[54]

In addition, investigation procedures need to be strengthened, clear guidelines and interpretations of competition law developed, and transparency and accountability promoted through information dissemination, public awareness campaigns and publication of cases solved and decisions made. [55]

Furthermore, the state aid authority will have to concentrate on the building up of a credible enforcement record. Preparation is lagging behind.[56]

2007

Progress can be reported in the area of antitrust, including mergers. The Law on protection of competition was amended so that the Commission for Protection of Competition (CPC) now has the right to conduct misdemeanour procedures and impose fines. However, in the case of an appeal, a suspension clause becomes effective which might lead to long delays in paying the fines imposed by the CPC. This weakens their deterrent effect. Several guidelines on implementing the competition law were published.[57]

Enforcement in the antitrust field has improved, but still needs to be strengthened and should concentrate on the most serious infringements of competition (cartels and abuse of a dominant position). [58]

Concerning enforcement, the CPC must make further efforts to put in place an effective system of ex-ante state aid control. [59]

Overall, the CPC has increased transparency and accountability by publishing all anti-trust and state aid decisions in the official gazette and on its new website.

The CPC has monitored all sectors where there is insufficient market liberalisation or competition. [60]

Progress was made in the area of state aid. The state aid law was amended and it now incorporates horizontal aid rules and is aligned with the acquis. The implementing regulations on rescue and restructuring were adopted. [61]

2004

As regards anti-trust, the overall assessment is positive. The Law on the protection of competition contains the main principles of Community anti-trust rules as regards restrictive agreements, abuse of dominant position and merger control. Nevertheless, some further fine-tuning of the rules is still necessary in view of the EU’s new procedural Regulation (EC) No 1/2003 and in order to ensure more efficient enforcement.[62]

It is important that the CPC[63] sets a high standard for independence, objectivity and quality, and for this reason the appointment procedure of CPC Commissioners also needs to improve. In order to ensure that the anti-trust enforcement record of the CPC becomes fully satisfactory, Bulgaria needs to continue its efforts to follow a more deterrent sanctions policy, to place more emphasis on the prevention of the most serious distortions of competition and to make better use of investigative tools, including surprise inspections. [64]

More recent progress has also been made in adopting state aid legislation and increasing the transparency in the system, as well as in developing administrative capacity in the CPC and the SAD and establishing a state aid enforcement record. Overall, on legislative alignment, administrative capacities and enforcement record, Bulgaria is reasonably well advanced, although in particular the state aid enforcement record still needs further strengthening.[65]

In particular, Bulgaria needs to further improve the quality of its state aid enforcement. In this respect, the continuation of current efforts aimed at improving administrative capacity and the close regular co-operation that the CPC has established with the Commission should enhance the quality of the enforcement record. [66]

Sustained efforts are required in order to continue to improve the quality of its State aid enforcement.[67]

2005

The CPC enforcement record has improved. In order to ensure further strengthening, emphasis needs to be given to the cases which most seriously distort competition, in particular cartels. The CPC made progress towards a deterrent sanctioning policy, but further efforts are needed. [68]

The state aid enforcement record of the CPC has improved considerably, both with regard to scope and quality, but it is essential to continue this process, and also to continue improving the follow-up to decisions. [69]

In the field of state aid, legislation and implementing rules covering the main principles of the acquis have been adopted. Future amendments will be necessary to adapt to new acquis. [70]

2006

Moreover, further progress has been made, for instance on competition, where the Commission for Protection of Competition has continued to build up a positive track record of anti-trust decisions. These chapters are therefore not examined below.[71]

2004

In the area of anti-trust, Romania adopted substantial amendments to the Romanian Competition Law in May 2004. The new legislation abolishes the requirement for individual notifications under its “block exemptions” and eliminates the possibility of granting exemptions for anti-competitive practices consisting of the abuse of a dominant position.[72]

Additional efforts should be made to follow a more deterrent sanctions policy and to place more emphasis on preventing serious distortions of competition.[73]

In the steel sector, transparency with regard state aid, as set out in Protocol 2 to the Europe Agreement, must be respected. Although a step forward has been taken with the adoption of a revised restructuring strategy, additional clarifications are needed, in particular with respect to the amount and intensity of state aid to be granted to individual companies in order to restore their viability.[74]

However, the Commission also concluded that, as regards state aid, not much progress had been achieved so far and a considerable effort would be necessary to fulfil the requirements in the field of state aid control over the medium term, in particular as regards the establishment of transparency through a credible aid inventory and the adoption of the necessary rules for the credible monitoring of state aid. [75]

Concerning anti-trust, the Competition Council should concentrate on preventing serious distortions of competition. As regards state aid, major efforts should be made to resolve the problem of alignment of incompatible state aid schemes and to enforce state aid rules.[76]

2005

While a more deterrent sanctioning policy has been put in place, the Competition Council must continue its active role, both as regards enforcement activities and competition advocacy, to ensure the continued liberalisation of the economy and the opening up of markets.[77]

In order to reach a satisfactory enforcement level, it is furthermore crucial that the Competition Council continues with the assessment of existing aid measures.[78]

2006

As regards the state aid enforcement record, the quality of the Competition Council’s assessment and analysis of aid measures has noticeably improved.[79]

Good progress has been made on state aid enforcement. However, increased efforts and swift action are now needed in this area in order to solve the shortcomings in time, before accession. In particular, efforts should be continued to conclude the assessment of the major existing aid measures in time. State aid grantors should ensure strict ex ante control of state aid schemes by the Competition Council.[80]

Romania has continued to make good progress in the area of state aid enforcement. The quality and independence of the Competition Council’s assessment of state aid measures and their analysis remains satisfactory.[81]