SLOVENIA Trends and Developments Contributed by: Tomaž Ilešič, Aljoša Krdžić and Ajas Midžan, Rojs, Peljhan, Prelesnik & Partners
are no overlaps, such cases are commonly resolved under the simplified route. Beyond the turnover thresholds, the Competition Act equips the CPA with a residual jurisdictional tool. The CPA may also review concentrations that do not meet the turnover thresholds where the undertakings con - cerned, together with their respective group compa - nies, hold a combined market share exceeding 60% in the relevant market in Slovenia (Article 66 (3) of the Competition Act). The mechanism is thus not a broad discretionary call-in power of the kind adopted in cer - tain other EU member states, but rather a specifically circumscribed, market share based trigger designed to capture transactions in already highly concen - trated domestic markets. In principle, the provision addresses the enforcement gap that has dominated EU debate since the Court of Justice’s ruling in Illu- mina / Grail . In practice, however, it remains untested, most likely because the combination of relatively low turnover thresholds and the small domestic market already captures the vast majority of transactions. It may be, therefore, that the relatively broad reach of the mandatory notification regime has left no practical occasion for the CPA to deploy this additional tool. The Rise of the Simplified Procedure in Slovenian Merger Practice A notable procedural feature of recent years is the emergence of the simplified procedure under Article 78 of the Competition Act. Modelled on the Com - mission’s simplified procedure, the Slovenian regime shares its underlying concept and logic, although it applies lower market-share ceilings than the EU equivalent. In practice, simplified decisions are typically issued within a matter of weeks, offering parties a swift and predictable route to clearance where one of several alternative conditions is met: • no horizontal overlap and no vertical or neigh - bouring-market relationship between the parties (applied for instance in the Meritus / EBRD / M Plus case); • a combined horizontal market share below 15% on all plausible market definitions (see the MERIT HP / Espresso case);
• a market share below 25% in any vertically related market (illustrated by the Kolektor Technologies / Orca Energija case); and • a move from joint to sole control, or an analogous structural change (as applied in the AZ Deos / FUDŠ case). In procedural terms, a simplified-procedure decision is a streamlined instrument – the CPA identifies the parties and the relevant sectors, confirms compat - ibility with competition rules, and specifies which of the statutory conditions was satisfied. In our opinion, the widespread adoption of the simplified procedure has been well received by practitioners, providing an efficient and predictable route to clearance for trans - actions that do not give rise to substantive competi - tion concerns. Following Brussels Through a National Lens In the cases where the CPA engaged in substantive review, it generally followed the Commission’s meth - odology in its competitive assessment, although its approach to geographic market definition in particular reveals a more nuanced picture. For its quantitative assessment, the CPA relied on market shares, the Herfindahl–Hirschman Index (HHI) and the 25% safe-harbour presumption drawn from the Commission’s Horizontal Merger Guidelines. The CPA applied this framework in Pivac / CM Invest , where HHI values in the wholesale meat markets remained moderate with small deltas, numerous competitors were active, and significant import competition was present. The CPA cleared the deal on that basis, illustrating its consistent application of the Commis - sion’s safe-harbour thresholds as a screening tool for unproblematic transactions. However, a recurring point of tension in the CPA’s sub - stantive practice concerns geographic market defini - tion. The CPA’s decisional record indicates a marked preference for national market definitions, with noti - fying parties facing a notable uphill task in persuad - ing the CPA to adopt a wider scope, even in sectors characterised by cross-border trade. For instance, in the GEN / Gorenjske Elektrarne case, which concerned the acquisition of a hydroelec -
593 CHAMBERS.COM
Powered by FlippingBook