Antitrust law and legislation in Bosnia & Herzegovina during Covid-19

Generally modelled after the EU… but not the EU

Its important to remember that, while Bosnia and Herzegovina’s competition rules are generally modeled after the EU rules, Bosnia and Herzegovina (“BiH”) is not part of the EU nor of the European Competition Network, and thus the competition law rules and policies of the EU in respect of the COVID-19 pandemic will not directly apply in Bosnia and Herzegovina. 

Nevertheless, some flexibility can perhaps be reasonably expected from the BiH Competition Council due to the extraordinary circumstances we find ourselves in and it is likely that it would follow the case law and the guidance of the European Commission, like it has done in the past.  

Competition Council working with (somewhat) reduced capacity

When it comes to the capacity and administrative operations of the BiH Competition Council during the COVID-19 pandemic, the Council has adopted special rules on its operations during this period – in essence, most of the staff will be working from home until further notice. The Council’s office remains open and a small number of on-duty staff will be present – but parties are encouraged to communicate only by email or post. However, no amendments to the material rules have been announced.  

No change or suspension has yet been made to the statutory deadlines (neither for the parties nor for the actions of the Council), therefore the Council still has an obligation to issue decisions on the relevant cases before it. However certain delays in the work of the Council should be expected. 

The BiH Competition Council has not issued any specific statement or guidance regarding its approach to cartels which may be “necessary” during the COVID-19 pandemic period. 

Nevertheless, cooperation between competitors which is necessary in order to ensure  the adequate supply and distribution of scarce products to consumers, or to otherwise mitigate the negative implications of the pandemic for consumers, would likely not be problematic for the BiH Competition Council, either because they would not constitute a restriction of competition or because the efficiencies would likely outweigh the restrictions to competition.

However, it is unlikely that the BiH Competition Council would show leniency in other cases, such as such as price fixing, territorial and customer allocation and agreements on a shortage of supply, which remain prohibited.

Abuse of dominant power remains prohibited and no changes are expected in that regard. 

No measures have been adopted so far in BiH which would adjourn or suspend procedural and material law periods. Therefore, the notification obligations and the deadline regime of merger control (e.g. 15 day filing deadline) remain unchanged.

The BiH Competition Council also has strict deadlines for acting (i.e. for initiating phase 1 or phase 2 of proceedings), and failure to do so leads to an automatic approval of the filing. However, a confirmation of completeness of the filing must be issued before the clock starts ticking, and there is no statutory deadline for issuing such a confirmation. Therefore, in practice, it can be expected that this step can last longer than usual due to the current extraordinary circumstances, which may cause a delay in the review of filings.