In April this year, the Serbian Constitutional Court rejected the application for constitutional review of an article in the Competition Act (the “Act”), which regulates protection of information before the country’s competition authority – the Commission for Protection of Competition (the Commission”).

According to the examined article, the Commission may grant protection of information, if it finds that the interest of the party is justified and stronger than the public interest with respect to freedom of information.

The applicant may be (i) the party (ii) a person that filed a complaint, or (iii) another person which submits/provides the information or document. The applicant must show the possibility of substantial damage due to the unveiling of the data in the application.

The article’s constitutionality was challenged by the Commissioner for information of public importance and personal data protection (the “Commissioner”). Specifically, the Commissioner argued that the challenged article of the Act was not in accordance with Article 2 of the Freedom of Information Act, which prescribes that protected information is of public interest.

Since the Constitutional Court has rejected the application for constitutional review, protected information continues to have a different status under the Freedom of Information Act and Competition Act, respectively.

The Commission has publicly supported the ruling of the Constitutional Court, noting that this contributes to legal certainty for undertakings, as well as to a uniform legal practice. 

It is interesting that a judge of the Constitutional Court gave a dissenting opinion in this case. In his view, the Constitutional Court failed to resolve the issue whether the challenged provision of the Competition Act was contrary to the Freedom of Information Act. Also, he argued that judicial interpretation was that protected information was public, as they were produced in proceedings by public bodies, and are found in the files of such bodies. Consequently, the dissenting judge considered that the ruling of the Constitutional Court was contrary to the principle of the unity of the legal order.

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