SLOVENIA Law and Practice Contributed by: Tomaž Ilešič, Aleksandra Mitić, Ajas Midžan and Lea Zahrastnik, Rojs, Peljhan, Prelesnik & Partners
2.12 Requirement for Clearance Before Implementation Implementation of a transaction must be suspended until clearance. Until the CPA clears the deal, the par - ties may not exercise any rights arising from the con - centration. 2.13 Penalties for the Implementation of a Transaction Before Clearance Any legal acts carried out in breach of the suspension obligation are null and void. This nullity is permanent and not subject to limitation. The CPA’s clearance obtained after early implementation permits lawful execution of the merger only from the date of the deci - sion onwards; validity cannot be granted retroactively by a subsequent clearance decision. Additionally, the same fines as for failure to notify apply to undertakings and responsible persons, but with a higher floor for determining the basic amount of the administrative sanction (in principle not less than 0.8%), reflecting the greater gravity of the offence. If a notifiable transaction is implemented without clearance, the CPA may also impose gun-jumping fines and require measures to restore effective com - petition. 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 In practice, competition fines are imposed through a unified administrative procedure, with limited trans - parency since only summaries of decisions are typi - cally published on the CPA’s website and in its annual reports. Enforcement practice shows that the CPA can impose very high fines, but settlements may sig - nificantly reduce them. Case law also indicates that courts review sanctions carefully and may substantial - ly lower fines, particularly on proportionality grounds. As per publicly available information, no such pen - alties have been imposed in the case of foreign-to- foreign transactions. See also 2.2 Failure to Notify .
In cases where a joint venture principally serves its parents or is set up for a limited duration, the CPA closely follows the Commission’s practice and deci - sional framework in assessing whether the full-func - tion criterion is satisfied. In the case of the establishment of a joint venture which performs all the functions of an independent enterprise with a longer duration, the jurisdictional threshold is met if the annual turnover of at least two undertakings involved in the concentration together with other undertakings in the group in the preceding business year in the market of the Republic of Slove - nia exceeded EUR1 million. 2.11 Power of Authorities to Investigate a Transaction The CPA does not have a broad, unrestricted discre - tion to “call in” any below-threshold transaction. Its ability to “call in” a transaction which does not meet the jurisdictional thresholds is limited and directly linked to the statutory rule based on a 60% market share threshold. Specifically, where the turnover thresholds are not met but the parties (with their groups) hold a combined market share above 60% in a relevant Slovenian mar - ket, the parties must inform the CPA within 30 days of the signing, the public offer or the acquisition of control. The CPA may then require a full notification within 25 working days, and failure to comply can lead to enforcement. The CPA has in the past exercised this possibility. As for time limits, the nullity of acts carried out in breach of the standstill obligation is permanent and not subject to any limitation period. However, the gen - eral limitation period for enforcing fines and similar measures is five years. The CPA’s power to impose administrative fines is subject to a limitation period (typically five years from the infringement, extending to a maximum of ten years if interrupted by procedural acts). See also 2.1 Notification and 2.9 Market Share Juris- dictional Threshold .
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