SLOVENIA Law and Practice Contributed by: Tomaž Ilešič, Aleksandra Mitić, Ajas Midžan and Lea Zahrastnik, Rojs, Peljhan, Prelesnik & Partners
is implemented without clearance, the CPA may also impose gun-jumping fines and require measures to restore effective competition. An acquirer of shares in a target that is in breach of the filing obligation may lose its voting rights from the shares acquired, and consequently the other shareholders can judicially challenge any resolution that the target’s general assembly has passed on that basis. Application in Practice The CPA’s decisions issued in proceedings for estab - lishing infringement or imposing fines are not pub - lished in full; once they become final, a non-confi - dential version should be published. Until then, the CPA typically makes available only summaries with limited information on its website. As a result, practi - tioners often rely on the CPA’s press releases, annual reports and the November 2023 Sanctions Guidelines to understand its enforcement practice and approach to fine calculation. Administrative sanctions for competition law infringe - ments were introduced only recently with the latest version of the Competition Act ( ZPOmK - 2 ), which has applied since 2023. Previously, fines were set in misdemeanour proceedings, usually conducted as a follow-on procedure to administrative proceed - ings. However, the new unified procedure no longer requires the conclusion of the administrative proce - dure first. The procedure also allows for a settlement between the CPA and the infringer, which can signifi - cantly reduce the level of the sanction. Based on publicly available information, the most recent gun‑jumping enforcement action in Slovenia is a 2023 case (which was taken under the previous version of the Competition Act ( ZPOmK - 1 )) in which the CPA imposed an aggregate fine exceeding EUR3 million for late notification and multiple instances of early implementation. It should be emphasised that this decision is not yet final, as it is currently subject to judicial review (ie, the misdemeanour procedure). While information regarding the case has entered the public domain, the decision itself has not (yet) been published by the CPA. Nonetheless, the most instructive enforcement case remains the Agrokor / Costella decision from 2019. In
that case, the CPA fined Agrokor a record amount of EUR53.9 million for failure to notify its acquisition of Costella; however, the Ljubljana District Court reduced the fine to EUR1 million (in the misdemeanour proce - dure), noting that the standstill obligation did not aim to harm market competition and could be attributed to the negligence of Agrokor’s then CEO. This decision demonstrates the CPA’s willingness to levy very large fines, but the court’s decision equally shows that they assess proportionality very carefully. However, with the introduction of administrative sanc - tions, the competent appellate body has become the Administrative Court of the Republic of Slovenia. According to the publicly available data, the Adminis - trative Court has not yet decided on any administra - tive sanctions in merger control matters. 2.3 Types of Transactions Concentration arises whenever there is a lasting change of control over an undertaking or part of one. It can result from a merger of independent undertakings, the acquisition of all or part of another undertaking, or the creation of a full-function joint venture. The mechanism of the transaction is irrelevant. Con - trol may be acquired by way of purchase of securities or property, by contract, or otherwise. What matters is whether the transaction produces a lasting change of control. Accordingly, the following are all potentially caught, subject to thresholds: • share acquisitions (full or partial); • asset acquisitions (including acquisition of part of a business); • mergers and statutory divisions; • creation of full-function joint ventures; and • acquisition of control through contractual means. Purely contractual joint ventures or those lacking operational autonomy are excluded. Internal restruc - turings that do not change control, eg, a reorganisa - tion within the same group, are also not caught. However, under the Competition Act, control is defined functionally rather than by reference to the form of the transaction. Consequently, operations that do not involve a transfer of shares or assets may still
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