While the adoption of this Law is undoubtedly significant, its practical impact is expected to develop gradually. The new legal framework creates opportunities for bringing damages actions, but also raises questions as to how quickly and to what extent it will be applied in practice.
Viewed in its historical context, competition law enforcement in Montenegro has been almost entirely driven by, and within the remit of, public authorities, with private damages actions remaining uncommon.
The new Law provides that any injured party is entitled to claim full compensation for harm suffered, including both actual loss and loss of profit, together with interest. On the one hand, this further aligns the national legal framework with the EU acquis in the field of competition law. On the other hand, it marks a shift towards a dual enforcement system combining administrative sanctions with private damages actions.
The Law introduces mechanisms that facilitate the initiation of proceedings. Courts are now bound by final decisions of the Agency or other competent courts establishing an infringement of competition law. In addition, courts adjudicating damages claims are vested with the authority to order the disclosure of relevant evidence. Under certain conditions, they may also access the case files of proceedings conducted before the Agency.
Where harm has arisen from an overcharge passed on to customers along the supply chain, compensation may be claimed only for the actual harm suffered at the relevant level of that chain, without reducing the liability of the infringer. The court is empowered to assess the extent to which the overcharge has been passed on. During the proceedings, the defendant may argue that the claimant passed on all or part of the overcharge to its own customers, in which case the recoverable damage may be reduced accordingly.
Both direct and indirect purchasers are entitled to claim damages, and infringers may be held jointly and severally liable for the full amount of harm. Where the precise quantification of harm is excessively difficult, the competent court is empowered to estimate its amount, thereby removing many traditional evidentiary obstacles.
However, a good legislative framework does not, in itself, guarantee a good immediate impact. Montenegro still has a limited number of infringement decisions, and in damages proceedings, courts are bound by a finding of infringement established in a final decision of the Agency or of the competent court reviewing such a decision.
Furthermore, competition damages actions are inherently complex. They require economic analysis, expert evidence and the ability to quantify harm across the supply chain. Although the Law provides for a broad scope of evidence, evidentiary proceedings remain demanding. Accordingly, a limited number of cases can be expected in the early stages of implementation.
Ultimately, Montenegro’s experience reflects a broader regional trend. In most Central and Eastern European jurisdictions, similar legislative frameworks have already been adopted, yet the practice of competition damages litigation remains relatively underdeveloped. This follows a typical trajectory: legislative alignment is followed, over time, by the gradual development of case law and market adaptation.
In conclusion, the adoption of the Law on actions for damages arising from infringements of competition law represents a necessary and positive step. It establishes a modern legal framework and removes key procedural barriers to bringing damages claims. At the same time, expectations should remain measured. The Law alone will not automatically generate a mature litigation landscape. Its effectiveness will depend on the development of institutional practice, the capacity of the courts, and, ultimately, the willingness of market participants to bring such claims. In this respect, the reform is best understood as a foundation for the long-term development of competition law enforcement in the field of damages in Montenegro.
The article in Montenegrin and English is provided by Partner Amra Ademović and Associate Mina Čogurić, from JPM Podgorica office.
