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The conclusion of a restrictive agreement is a new criminal offence in the amended Criminal Code of

January 2017 - EU & Competition. Legal Developments by Bojovic & Partners.

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The Criminal Code (Official Gazette of RS, no. 85/2005, 72/2009, 111/2009, 121/2012, 104/2013, 108/2014 and 94/2016; Code was amended on 23 November 2016. Most of the new provisions of the Code will enter into force as of 1 June 2017. 

Besides establishing new criminal offenses against domestic violence and sexual assaults, which harmonize Serbian criminal law framework with the Council of Europe Convention on preventing and combating violence against women and domestic violence (“Istanbul Convention”), some changes regarding criminal offenses against economic interests have been introduced as well. Three offenses have been decriminalized, while seven new ones have been added. Therefore, instead of the previous 25 provisions, the amended Code now contains 29 offenses against economic interests.

One of such changes is substitution of the offense "abuse of monopolistic position" (art. 232) with the “conclusion of a restrictive agreement” (art. 229).

The "abuse of monopolistic position" provision stipulated that a responsible person in a company or other commercial entity, who by abuse of monopolistic or dominant market position or by concluding monopolistic agreement causes market disruption or places that entity into a more favorable 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. As noted, this criminal act could have been performed in two ways: through abuse of monopolistic or dominant position in the market, or through a conclusion of monopolistic agreements. In practice, this provision never took actual effect.

The “conclusion of a restrictive agreement” incriminates any person in a commercial entity that concludes a restrictive agreement, which is not exempted from the prohibition under the competition protection legislation, and which fixes prices, limits production or sales or divides markets. Therefore, the new provision omits “abuse of monopolistic or dominant market position” and leaves as incrimination only the conclusion of the restrictive agreement that is not exempted from prohibition according to the Law on Protection of the Competition (Official Gazette of RS, no. 51/2009 and 95/2013), and which fixes prices, limits production or sales or divides markets.

Additionally, the Code provides another novelty within the same article, a possibility of the abolishment of sanctions under certain circumstances, and therefore putting an offender in a more favorable position than the offender would have been in before the amendment. Namely, it stipulates that, should the offender qualify for the abolishment of fine under the Law on Protection of Competition (i.e. pursuant to a successful leniency application under its art. 69), the abolishment for the sanctions in the provision 229 of the Code may apply as well.

The sanction (imprisonment from six months to five years and fines) has not changed through the amendments.

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