SLOVENIA Law and Practice Contributed by: Tomaž Ilešič, Aleksandra Mitić, Ajas Midžan and Lea Zahrastnik, Rojs, Peljhan, Prelesnik & Partners
6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Coverage of Ancillary Restraints A clearance decision also covers ancillary restraints that are directly related to and necessary for imple - menting the deal (eg, a reasonable non-compete on the seller). The parties must identify and describe any such restraints in the notification, and the clear - ance then extends to those that genuinely meet the “directly related and necessary” test. To benefit from automatic clearance, the arrangement must therefore be closely linked to the main merger agreement itself and the parties must prove that without the restraint, the transaction could not be executed or could only be executed under significantly more risky conditions, at substantially higher costs, or over a much longer timeframe. Separate Notification Considering the above, no separate notification is required or available for ancillary restraints. They are assessed as part of the main filing. Restraints that go beyond what is necessary fall outside the clearance and could be challenged separately under the general competition rules. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights The CPA publishes information on each notified deal, which allows third parties to come forward and submit their opinion on the transaction under review. Com - petitors, customers, suppliers and complainants can submit objections or comments explaining why a deal might harm competition. Third parties are, in principle, not deemed to have a “legal interest” in the proceed - ings and are therefore not accorded the status of par - ties. Third parties not being able to access the case files is also linked to the nature of proceedings, which naturally involve extensive business secrets and com - petitively sensitive information, necessitating strict confidentiality safeguards. However, before granting access to a third party, the CPA shall request the par -
Second, immediately upon receiving conditional clear - ance, the parties can be instructed to appoint an inde - pendent monitoring trustee, approved by the CPA, at their own expense. The trustee’s job is to oversee the management of the divested business, ensuring it is kept viable, separate and competitive during the tran - sition window, and to audit the final sale process. Completion of Transaction Prior to Remedy Compliance In practice, the decision will specify ongoing obli - gations (typically behavioural in nature) and set out clear timelines by which these must be complied with. Rather than delaying closing, the transaction gets implemented and the parties continuously observe the agreed behavioural commitments (eg, supply obli - gations) within the prescribed timeframes following completion. Penalties Failure to comply with mandated remedies can result in penalties, such as (i) revocation of the approval, (ii) administrative fines of up to 10% of the group’s global annual turnover, (iii) periodic penalty payments of up to 5% of the average daily turnover for each day the non-compliance persists and (iv) personal liability The CPA is legally required to issue a formal, written and comprehensively reasoned administrative deci - sion directly to the notifying parties at the end of its review. The delivery of this formal document marks the official conclusion of the administrative process and starts the clock for a potential judicial appeal before the Slovenian Administrative Court. Non-confidential versions of final decisions are made publicly available on the CPA’s official website. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions There are no publicly reported recent prohibitions and no reported cases of remedies being imposed in purely foreign-to-foreign deals. fines for responsible persons. 5.6 Issuance of Decisions
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