PRIMENA ODREDABA SPORAZUMA O STABILIZACIJI I PRIDRUŽIVANJU O ZAŠTITI KONKURENCIJE PRED DOMAĆIM SUDOVIMA
APPLICATION OF COMPETITION RULES OF THE STABILIZATION AND ASSOCIATION AGREEMENT BY SERBIAN COURTS

Summary/Abstract: This paper is an authorized lecture held in the European Law School, Zlatibor, on 22 February 2011. It treats the topic of the obligation of the courts in the Republic of Serbia to apply competition rules arising from Article 73 of the Stabilization and Association Agreement, and Article 38 o the Interim Agreement in accordance with the EU law criteria. By those provisions, the parties to the Agreements have indirectly incorporated Articles 101 and 102 of the Treaty on Functioning of the European Union into Serbian law. Restrictive agreements and abuse of dominant position are incompatible with the proper functioning of these Agreements. This means that the law enforcement authorities in Serbia (Commission for the Protection of Competition, and courts) are obliged to prevent the making and existence of such agreements, and such practice of undertakings. However, such agreements and practices are to be prevented pursuant to the Agreements, only insofar as they may affect trade between the Union and Serbia. When assessing practices of economic operators in relation to this provision the competent authorities in Serbia are bound to assess them on the basis of criteria arising from the application of the competition rules applicable in the Union. One needs to study the practice of the Court of the European Union and secondary sources, such as regulations, notices, communications and guidelines, in order to be informed of the manner in which the competition law rules are applied in the Union. In the first part of the paper, the conditions for application of competition law provisions of the Agreements, i.e. cross-border effect and appreciable effect, are defined more closely on the basis of practice of the EU Court of Justice. This is followed by an outline of the most important sources (regulations) that contain criteria of EU competition law to be followed by the Serbian Commission for Protection of Competition. Main focus in the following section is on judicial review of the implementation of competition rules. This is effected in judicial review proceedings conducted before administrative courts, and in civil actions for damages conducted before civil courts. Several issues are identified as potential problems, as far as application of EU law criteria is concerned: short time-limits for rendering decisions on judicial review by administrative courts, lack of comparative law material, especially in Serbian translation, inadequate knowledge of competition law, particularly among older judges, non-existence of a competent authority to which the domestic courts could directly refer questions of interpretation of the provisions of the Stabilization and Association Agreement (and EU competition rules that are taken into account on the basis of the Agreement), in case such questions arise in the course of direct application of these provisions.

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