Decisions of the Council of\nCompetition of Bosnia and Herzegovina are final and binding.<\/p>\n\n\n\n
The Council of Competition\ndecides on the competition infringements in accordance with the provisions of\nthe Competition Law and impose fines for violation of the same, as well as for\nfailure to comply with the decisions, requirements and orders of the Council of\nCompetition.<\/p>\n\n\n\n
Bearing in mind that the\nCouncil of Competition is an independent body whose essential task is to\ncontrol activities of business entities in the market of Bosnia and Herzegovina\nand to enable equitable application of the Competition Law then an interesting\nquestion is being raised and the same relates to the enforced execution of the Council’s\ndecisions.<\/p>\n\n\n\n
The current Competition Law\ndoes not contain detailed provisions regulating the above-mentioned issue, nor\nthe Council of Competition passed bay-laws that would elaborate the issue of\nenforced execution of its decisions.<\/p>\n\n\n\n
The decisions of the Council\nof Competition require certain actions, in particular certain behavior is\nforbidden, and fines are imposed for certain prohibited actions or due to the non-compliance\nwith the decisions of the Council of Competition.<\/p>\n\n\n\n
In case of a\n“serious violation of the Law”, the Council of Competition is\nauthorized to punish any responsible legal entity or individual with a fine of\n10% of the value of the total annual income of the legal entity generated in\nthe previous year that preceded the year in which the violation occurred, and fines range from 15.000,00 BAM to 50.000,00\nBAM for the responsible person.<\/p>\n\n\n\n
A special decision imposing a\nfine will be made by the Council of Competition in case the business entities\ndo not act on the Council’s orders during the conduct of the procedure (eg. they\ndo not submit information or submit incorrect or incomplete information or they\ndo not submit a notification of the intention of the concentration) and this\nfine can be imposed in the amount that does not exceed 1% of the total revenue\nin the preceding business year. For the responsible persons in the business\nentity the fine ranges from 5.000,00 BAM to 15.000,00 BAM.<\/p>\n\n\n\n
In accordance with\nthe Law on Competition and the Decision on Closer Defining the Method of\nPeriodic Payment of Fines, the Competition Council has been authorized to\nimpose fines (periodic fines) as a special measure taken in order to force\nbusiness entities to respect and enforce decisions and pay fines in the amount of\nup to 5% of the average daily income of the business entities realized in the\npreceding business year for each day of exceeding the deadline determined by\nthe decision.<\/p>\n\n\n\n
In the event that business\nentities (parties to the proceedings) or persons who are not parties to the\nproceedings, fail to implement or execute the aforementioned decisions of the\nCouncil, according to the applicable law, the same may seek legal assistance\nfrom the relevant authorities for their enforcement, while the relevant\nauthorities are obliged to act at the request of the Council of Competition.<\/p>\n\n\n\n
In the light of this\nprovision, it can be concluded that if a party in the proceedings fails to\nexecute the decision of the Council of Competition, then the Council is\nauthorized to request “legal assistance” from another state authority\nthat will initiate and enforce the same. Bearing in mind that the Council of\nCompetition is a state body it implements its decisions mostly through the BiH\nProsecutor’s Office and the competent court.<\/p>\n\n\n\n
Prior to the\nenforcement procedure itself, the Council is empowered to impose new fines or\npenalties until the enforcement of the decision or payment of the imposed fine.<\/p>\n\n\n\n
On the other hand, in\nits provisions, the law extends the effects of the imposed fines to the\nassociation of business entities, therefore in the event of insolvency of the\nassociation, the imposed fine can be collected from the contributions of\nmembers of the association paid for the purpose of paying a fine. If the said\ncontributions are not paid within the deadline, the Council of Competition may\ndemand payment of a fine from any member of the association.<\/p>\n\n\n\n
However, the Council of\nCompetition did not face too many problems related to the implementation of its\ndecisions. The reason for this is the fact that the Council has the\npossibility, in case of non-compliance with its decision, or in the event of\nnon-payment of the imposed fines, to impose a new fine for the failure and those\nfines are quite large.<\/p>\n\n\n\n
The question of\nexecution of the decisions of the Council of Competition is becoming more\ninteresting if one takes into account that in addition to business entities\nthat have their headquarters in the territory of Bosnia and Herzegovina, the\nCompetition Law applies to companies with headquarters abroad, of course, if\nthe same is a participant in the market of Bosnia and Herzegovina.<\/p>\n\n\n\n
The question arises as to how\nto execute a decision of the Council of Competition or to collect a fine if the\nbusiness entity does not have its headquarters in the territory of Bosnia and\nHerzegovina? The answer to the question\nlies in the application of the relevant regulations of the European Union, use of the case law of the European Court of\nJustice as well as use of the decisions of the European Commission in assessing\neach particular case, since the Council of Competition is authorised to use the\nsame.<\/p>\n\n\n\n
The practice of the European\nCourt of Justice has established that under the term entrepreneur (in our country\nthis should be a business entity) understands different legal entities, i.e. all\nrelated legal entities (parent company, daughter company, other affiliated\ncompanies) which are jointly and severally liable for any fines imposed against\nthe entrepreneur. In accordance with the taken position for the imposed fines,\nnot only will the economic entity be fined, but also the related companies, i.e.\nin case of insolvency of the business entity, the fine shall not be left\nunpaid.<\/p>\n\n\n\n
This attitude is taken for the\npurpose of enforcing the entire “group” to align its business with\nthe rules of market competition, while on the other hand the fine imposed\nshould reflect the overall strength of the group (related companies) that makes\nthe entrepreneur (<\/strong>business entity).<\/p>\n\n\n\n However, such a\nbroadly defined term “entrepreneur” (business entity) was, among\nother things, one of the reasons for coming up with a proposal for a Directive\nof the European Parliament and the Council authorizing the bodies of the Member\nStates in charge of competition to better enforce the rules and ensure the\nproper functioning of the internal market<\/em><\/strong>which should be considered by the European Parliament and the\nCommission.<\/p>\n\n\n\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0One of the proposals of the Directive is to use the term “business entity” \u00a0for the purpose of imposing fines against the parent companies and the legal and economic successors of the company. In this way, it would prevent business entities to avoid the payment by simply merging with another company or by restructuring. \u00a0Any legal or economic successor of the entity or all related parties shall be jointly and severally liable for the imposed fine if the business entity against whom the fine is imposed is not able to pay the same.<\/p>\n\n\n\n The new Directive shall\nenable the mutual cooperation of state authorities in charge of market\ncompetition in a way that when a national competition authority (the applicant)\ncarries out an inspection on behalf of the national competition authority of\nanother Member State (the recipient of the request), of the official person or persons accompanying\nthem, the applicant countries have the right to attend and actively participate\nin the implementation of the inspection.<\/p>\n\n\n\n For the purpose of collecting\nthe fines imposed, Member States shall ensure that the executing authority, at\nthe request of the national authority of another Member State, executes\ndecisions imposing fines or penalties imposed by the requesting authority.<\/p>\n\n\n\n In order to enable the State recipient of the request\nto enforce the applicant’s decision, it is required that the entrepreneur,<\/strong> against whom the fine or penalties\nhave been imposed, has no legal presence in the State of the applicant and that\nit is obvious that the subject entrepreneur\ndoes not dispose sufficient funds in the Member State of the applicant. Of course, the applicant\nshall be authorized to file a request for enforcement only if the decision\nwhose enforcement is requested in the applicant’s country has become final and\nno appeal against it can be filed, and if the decision whose enforcement is requested\nis not in obvious contradiction with the public order of the Member State that\nreceived the request.<\/p>\n\n\n\n In this way, it will be\npossible to avoid the possibility that a business entity that does not have a\nlegal presence in the territory of a state avoids payment of the imposed fines.<\/p>\n\n\n\n In accordance with\nall the above, the Council of Competition has all the powers to enforce its\ndecisions, i.e. to impose fines and penalties for failing to do so, and in the\nend, to initiate a procedure of enforced execution through the relevant state\nauthority. The ultimate goal of such powers is primarily to protect the market\nand settle the market participants behavior as well as to enable equal\nparticipation. Bearing in mind that the Council of Competition has wide powers\nto enforce its decisions, first of all, by imposing quite high fines, then\nbusiness entities are quite careful when deciding whether to act on the\nCouncil’s decision or not.<\/p>\n\n\n\n It is indisputable that the aforementioned Directive, if adopted, will greatly assist and contribute to the prevention of market abuse due to the fact that the behavior of business entities will also be checked by the competition authorities of other Member States.<\/p>\n\n\n\n Author:<\/p>\n\n\n\n Natasa Skrbic, e-mail: snatasa@afsajic.com<\/p>\n","protected":false},"excerpt":{"rendered":" Decisions of the Council of Competition of Bosnia and Herzegovina are final and binding. 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