SLOVENIA Trends and Developments Contributed by: Tomaž Ilešič, Aljoša Krdžić and Ajas Midžan, Rojs, Peljhan, Prelesnik & Partners
Rojs, Peljhan, Prelesnik & Partners Tivolska cesta 48, 1000 Ljubljana, Slovenia
Tel: +386 1 23 06 750 Email: office@rppp.si Web: www.rppp.si
Jurisdictional Thresholds and Recent CPA Practice The notification obligation in Slovenia is triggered only where two cumulative conditions are satisfied: (i) a “legal” condition, requiring a qualifying change of control over another undertaking or part thereof; and (ii) an “economic” condition under Article 66 (1) of the Competition Act, requiring combined group turnover in the Slovenian market exceeding EUR35 million in the preceding business year and either the target’s group turnover in the Slovenian market exceeding EUR1 million or, in the case of a full-functioning joint venture, the Slovenian turnover of at least two under- takings concerned each exceeding EUR1 million in the preceding business year. Recent practice confirms that the CPA has been apply - ing these thresholds in a predictable and consistent manner, declining jurisdiction where the turnovers fell short of the statutory minimums and equally declining competence where they exceeded the EUMR thresh - olds. Notably, the recent Mercator / Tuš transaction illustrates the latter scenario. Mercator, one of the largest Slovenian grocers (under Croatian ownership through the Fortenova group), planned to acquire its rival, Tuš. Having verified that the parties’ combined worldwide turnover and individual EU turnovers sat - isfied the EUMR thresholds, the CPA dismissed the notification for lack of competence, directing the par - ties to notify the European Commission, and thereby applied the EUMR’s jurisdiction exclusivity in that mat - ter. However, in practical terms, the turnover thresholds under the Competition Act ensure that foreign-to- foreign deals can still require a Slovenian filing, even where neither party has a local subsidiary. Where there
Slovenia’s merger control regime is administered by the Competition Protection Agency of the Republic of Slovenia (Slovene: Javna agencija Republike Slovenije za varstvo konkurence ;CPA), which assesses con - centrations under the Prevention of Restriction of Competition Act (the “Competition Act”). The CPA’s steady flow of recent merger decisions – approaching 100 in the past two years – reflects an increasingly mature practice anchored in the EU Merger Regulation (EUMR), the Commission’s guidelines and practice, as well as the most recent Court of Justice jurisprudence. This article offers a high-level overview of the principal trends in the CPA’s recent decisional practice, with a focus on the developments most relevant to parties contemplating transactions with a Slovenian nexus. Three themes run through the CPA’s recent practice. The first is the reliability of the notification frame - work, built on clearly defined turnover thresholds and complemented by an efficient simplified procedure, which provides a predictable route for routine transac - tions, particularly in the context of foreign-to-foreign transactions. The second is methodological align - ment with the European Commission, tempered by a distinctly national approach to certain questions of market delineation. The third is the growing willing - ness of the CPA to pursue proportionate outcomes in the most demanding cases, including the acceptance of the failing-firm defence and the design of tailored behavioural remedies instead of outright prohibition. The sections that follow trace each theme through the CPA’s recent decisions, concluding with an assess - ment of the investigations currently pending.
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