SLOVENIA Law and Practice Contributed by: Tomaž Ilešič, Aleksandra Mitić, Ajas Midžan and Lea Zahrastnik, Rojs, Peljhan, Prelesnik & Partners
5.2 Parties’ Ability to Negotiate Remedies Negotiating Remedies Where the CPA has serious concerns, the parties can offer commitments to resolve them. Remedies may be structural (such as a divestment or separation of oper - ations) or behavioural (such as access or licensing commitments). The CPA cannot impose remedies of its own design unilaterally but rather can only accept commitments the parties propose. Proposing remedies shifts the review timeline. Under the Competition Act, if commitments are formally sub - mitted, the statutory review phase in which they are introduced is automatically extended by an additional 15 working days to allow the CPA adequate time to analyse them and decide whether the proposed rem - edies are sufficient. Typical Remedies The remedies are categorised as follows: • structural remedies (the carve-out and divestiture of overlapping business activities, licensing, IP transfers, etc); and • behavioural remedies (governing the future con - duct of the merged entity). Conditional clearances are rare in Slovenia. The CPA tends in practice to favour behavioural remedies, such as restrictions on information exchange and obliga - tions to supply goods or services under specified conditions and in defined quantities. This approach is also reflected in the CPA’s most recent practice, including cases where remedies have been subject to market testing, while structural remedies are applied more exceptionally. Remedies for Non-Competition Issues Remedies in merger control address only competi - tion concerns. The CPA cannot demand remedies to address non-competition issues. Any non-competi - tion conditions would arise under the separate FDI or sectoral regimes. 5.3 Legal Standard Remedies must effectively and fully resolve the iden - tified competition concerns. Proposals must clearly
describe the remedy, explain how it addresses the concern, and set out how it will be implemented. 5.4 Negotiating Remedies With Authorities Negotiation Remedies Parties can initiate remedy discussions at almost any point in the lifecycle of a transaction, but the formal submission deadlines vary depending on the phase. If competition concerns are clear from the start, par - ties can formally submit remedies alongside their complete merger notification or during the initial 25-working-day Phase I review. Doing so automati - cally extends the Phase I deadline by 15 working days so the CPA can evaluate them. Commitments may be offered at any time up to the end of Phase II. If the case proceeds to a detailed assessment, strict statutory deadlines apply. The noti - fying party must propose remedies within 45 business days from the date the CPA issues its decision to open Phase II. Who May Propose Remedies? The CPA cannot design a remedy package on its own motion and offer them to undertakings concerned by the concentration under review. The legal initiative to propose and draft commitments rests exclusively with the notifying parties. If the parties refuse to offer remedies, or if the remedies they offer are deemed structurally insufficient to solve the competition issue and the parties refuse to adjust them, the CPA’s only legal recourse is to prohibit the implementation of the transaction under review. 5.5 Conditions and Timing for Divestitures Divestitures and Other Remedy Timeframes First, in the interim compliance period, when a struc - tural remedy is approved, the CPA grants the par - ties a specific, confidential window of time to find an acceptable buyer and execute the carve-out. Typical - ly, this period spans three to six months from the date of the clearance decision, though it can be extended under exceptional circumstances if the parties prove they are acting in good faith but face objective market delays.
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