SLOVENIA Law and Practice Contributed by: Tomaž Ilešič, Aleksandra Mitić, Ajas Midžan and Lea Zahrastnik, Rojs, Peljhan, Prelesnik & Partners
2.14 Exceptions to Suspensive Effect The suspensive effect may be waived upon request by the notifying parties. The CPA can permit partial or conditional implementation prior to clearance if this is necessary to preserve the value of the investment or to ensure the provision of services of general interest, balancing potential harm against risks to competition. Waiver requests are decided swiftly (within 15 working days). In practice, derogations may also be granted in situations such as failing firms, provided the par - ties demonstrate imminent financial distress and a risk of asset or value destruction if implementation is delayed. 2.15 Circumstances Where Implementation Before Clearance Is Permitted Closing Before Clearance Pre-clearance closing is only permissible in two cir - cumstances: • formal derogation (waiver) under the Competi- tion Act (the CPA may issue a decision authorising the implementation of a concentration to a certain extent or under certain conditions prior to the adoption of a decision; in this respect see also 2.14 Exceptions to Suspensive Effect ); and • public bids under the law governing takeovers (a suspension obligation does not apply in this case, provided that the acquirer does not exercise voting rights, or exercises them only according to a permit for early implementation granted by the CPA). Carving Out the Business or Assets in the Jurisdiction It is generally possible to complete a global deal in jurisdictions where clearance has been obtained while ring-fencing the Slovenian operations and deferring completion there until the CPA clears it. However, in practice, this requires careful drafting to make Slo - venian completion conditional, and it can be difficult where the businesses are integrated. Parties relying on such a structure should be confident the Slovenian effects can genuinely be isolated. Moreover, there is no explicit statutory obligation under the Competition Act to notify the CPA of an intention to implement a global carve-out structure prior to doing so. However, in practice this is strongly advisable in order to engage the CPA early in the process to resolve any questions
and concerns and to reduce risks that the CPA might take a view that global closing has nonetheless result - ed in a de facto change of control over the Slovenian operations, triggering gun-jumping liability. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification A notifiable deal must be filed within 30 days of the earliest of: • the conclusion of the agreement; • the announcement of a public bid; and Late notification can attract the fines described in 2.2 Failure to Notify , and these have been imposed in practice. Basic information on such enforcement is published on the CPA’s website and in its annual reports. 3.2 Type of Agreement Required Prior to Notification While a definitive, signed agreement (such as a share purchase agreement or asset purchase agreement) is the most common trigger for a filing, it is not manda- tory to wait for the final text to be fully locked down before notifying the CPA. • the acquisition of control, and always before closing. A notification may be submitted at an earlier stage, provided that the parties can demonstrate a serious intention to proceed with the transaction and the structure and principal terms are sufficiently clear to permit substantive assessment. In past practice, the CPA has accepted a letter of intent or memorandum of understanding as a sufficient basis for the commence - ment of formal proceedings. However, a mere expres - sion of good-faith intention, in the absence of a suf - ficiently defined transaction structure, would likely be deemed insufficient to trigger the CPA’s jurisdiction.
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