SLOVENIA Law and Practice Contributed by: Tomaž Ilešič, Aleksandra Mitić, Ajas Midžan and Lea Zahrastnik, Rojs, Peljhan, Prelesnik & Partners
constitute a qualifying change of control. Examples of arrangements that may be regarded as a concentra - tion (ie, obtainment of qualifying control) include the following: • a shareholders’ agreement granting a party veto rights over strategic decisions or otherwise confer - ring the ability to determine the target’s commercial or financial policy may constitute a concentration (particularly where a pre-existing minority share - holder acquires such rights for the first time and thereby obtains (joint) control); and • changes to articles of association, such as amend - ments introducing or removing special rights, including supermajority requirements or reserved matters, can alter the control structure and consti - tute a concentration. 2.4 Definition of “Control” Definition of “Control” “Control” of an undertaking or part thereof means rights, contracts or any other means which make it possible to exercise decisive influence over an under - taking or part of an undertaking, in particular through: • ownership or rights to use all or part of the under - taking’s assets; or • rights or contracts which confer decisive influ - ence on the composition, voting or decisions of the organs of the undertaking, whereas “decisive influence” exists when a company has the ability to make strategic decisions regarding the economic policies of another company. Acquisition of Minority or Other Interests Below the Level of Control In principle, purely passive minority acquisitions that do not confer decisive influence are not caught, unless they result in control. Importantly, control over a minor - ity share may arise on either a factual or legal basis. Factual control can arise where capital is significantly dispersed and other shareholders do not intensively exercise voting rights, based on an analysis of past decision-making in the company’s bodies. Legal control arises where the minority shareholder holds special rights enabling decisive influence over strate - gic decisions, such as statutory veto rights over the
budget, business plan, appointment of senior man - agement, or major investments. 2.5 Jurisdictional Thresholds See 2.1 Notification . 2.6 Calculations of Jurisdictional Thresholds Thresholds are turnover-based ; thus, the question of asset book value or fair market value does not arise. Turnover is measured for the last financial year and on a group-wide basis, meaning the undertaking con - cerned together with the entities that control it and that it controls. Turnover booked in a foreign currency is converted into euros, in practice using the average exchange rate for the relevant financial year. Where the busi - ness changed during the reference year (for exam - ple, through an acquisition or divestment), turnover is adjusted to reflect the businesses actually being acquired or retained. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds Calculation of Jurisdictional Thresholds See 2.1 Notification . For the buyer side, the whole acquiring group’s Slo - venian turnover counts. That means that for the com - bined EUR35 million threshold, the turnover of all undertakings concerned, including the acquirer and its group, is aggregated. However, for the target, only the target’s turnover is included while the seller’s retained business is exclud - ed (consistent with the EU approach), meaning that the annual turnover of the acquired company, includ - ing its affiliates but excluding the seller and its affili - ates, must have exceeded EUR1 million in Slovenia in the previous financial year. For a full-function joint venture, the economic con - dition is met if at least two of the parties (with their groups) each had more than EUR1 million of Slovenian turnover.
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