The protection of competition on the Serbian market is governed by the Competition Act (‘Official Gazette of the Republic of Serbia’ No. 51/2009 and 95/2013), emphasizing as its primary objective the overall economic progress, the well-being of society as a whole and consumers within its territorial application on the territory of Serbia, including acts and actions committed outside the applicable territory that may affect or affects competition in the Republic of Serbia. Article 9 of the stated Act determines breaches of competition law as acts or actions of market participants with the purpose or consequence amounting to limitations, violations or preventions of competition. The abuse of dominant position occurs as one form of violation of competition law. As defined by Article 15, a dominant position is a position enjoyed by market participants, which, having a particular degree of market strength, can operate to a significant extent independently of actual or potential competitors, customers, suppliers or consumers in general. The term market strength has been determined in relation to economic or other indicators, comprehensively listed in Article 15, such as having a market share greater than 40% in the relevant market, economic and financial strength, technological advantages, degree of vertical integration, the structure of the relevant market and more. The very burden of proving someone’s dominant position is generally up to the Commission for the Protection of Competition. According to the Act, it is possible to establish the position of collective dominance, namely when two independent market participants economically tied in the relevant market jointly act as one participant.

After defining the meaning of the dominant position in accordance with the provisions within the Serbian Competition Act, let’s move to Article 16, which prohibits the abuse of the dominant position and defines it afterwards. Namely, it is forbidden to directly or indirectly impose an unfair purchase or sale price or unfair business conditions, and to limit production, technical development or the market itself. Furthermore, it is not permitted to apply unequal business conditions to the same deals with divergent market participants, that amounts consequently to putting individual participants at a disadvantage over their competitors. Lastly, the abuse of a dominant position also refers to conditioning the conclusion of a contract by making the other party accept additional obligations that are not common in their commercial nature or in relation to trade customs regarding the subject of the contract. In the light of the Serbian Competition Act, the relevant market is defined as a market encompassing the relevant market of products in a geographically defined area. In other words, the relevant market can be described as a set of goods or services that consumers consider to be mutually replaceable in terms of their main features, common purpose and price. The relevant geographical market is presented as a defined territory where market participants engage in supply and demand operations, and where there are the same or similar conditions in the light of competition, which differ significantly from the competing conditions in neighboring territories. Hence, the relevant market can be determined according to its geographical and production purpose, along with the legislative formulation that recognizes the replacement test in its wording. Another tool for determining the relevant market, known as the SSNIP test (Small but Significant and Non-Transitory Increase in Price) or hypothetical monopoly test, originates from American law, and comes down to a hypothetical price increase of 5 to 10%. Additionally, the criteria for determining the relevant market have been closely described by a 2009 Regulation of an akin name (‘Official Gazette of the Republic of Serbia’, No. 89/2009).

The Serbian Act has taken on many solutions from the European legislation, bearing in mind that, in accordance with Article 73 of the Stabilization and Association Agreement between the European Union and the Republic of Serbia (‘Official Gazette of the Republic of Serbia’- International Treaties, No. 83/2008), our bodies are obliged to apply the antitrust rules of the European Union. A solution at the EU level, set out in Article 102 of the Treaty on the Functioning of the European Union, prohibits the abuse of the dominant position on the market. As in the solution stipulated in Serbian law, the dominant position is not prohibited in itself. Many well-known companies around the globe hold a dominant position in the market thanks to their own innovation skills and entrepreneurship. If we would think of analyzing the wording of Article 102, we would first bump into a general prohibition on the abuse of a dominant position by one or more market participants if it disrupted trade within Member States in the internal market. Looking at paragraph 2, we can see that examples of such abuse are listed. Interpretations of the underlying cornerstones of competition law have been developing through European judicial practice. For instance, in the notorious United Brands case, the court held that the dominant position in the relevant market can be reflected in the power of a particular corporate entity that enables it to disrupt and prevent efficient competition by being capable of acting independently in relation to competitors and consumers. A similar stance has been taken in the case of Continental Can, in which the court held that such market power amounts to independent conduct towards competitors and consumers as a result of the abuse of effective competition in the relevant market. In an era characterized by a high degree of digital technology development and technological advancements, the protection of competition through existing legislative solutions has become exceedingly important, as reflected in the European Commission’s latest investigation into the alleged abuses of Apple’s dominant position in the field of contactless payments.