Merger thresholds
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SLOVENIA

Marko Ketler
Senior Partner/Attorney at Law

marko.ketler@karanovicpartners.com

Tel: +386 41 617 639

Igor Angelovski
Partner/Attorney at Law

igor.angelovski@karanovicpartners.com

Tel: +386 41 682 323

Živa Nučič
Senior Associate/Attorney at Law

ziva.nucic@karanovicpartners.com

Tel: +386 41 970 996

Kevin Rihtar
Senior Associate/Attorney at Law

kevin.rihtar@karanovicpartners.com

Tel: +386 31 422 961

No new regulation adopted or proposed

Confirmed up-to-date: 09/06/2021

(Content available free of charge at Mergerfilers.com - sponsored by Ketler & Partners - member of Karanovic)

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. Merger control regulation was introduced in the Slovenian Prevention of Restriction of Competition Act (“Slovenian Competition Act”) in 2008.

2) Which authorities enforce the merger control regulation?

The Slovenian Competition Protection Agency (“Slovenian Competition Agency”) enforces the Slovenian Competition Act including the merger regulation contained therein. 

Decisions of the Slovenian Competition Agency may be challenged before the Slovenian Administrative Court.

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Part 3 and Chapter 3 of Part 5 of the Slovenian Competition Act. More detailed rules may be found in by-laws. Links to the relevant legislation, guidelines and forms are listed here:

Original Slovenian version Unofficial English translation

Zakon o preprečevanju omejevanja konkurence

Prevention of Restriction of Competition Act

Uredba o vsebini obrazca za priglasitev koncentracije podjetij

Decree on the concentration of companies notification form.

(Translation into English not available)

Filing form in Slovenian can be found here (contained as annex to the Uredba o vsebini obrazca za priglasitev koncentracije podjetijdone/Decree on the concentration of companies notification form).

 

4) Does general competition regulation apply to mergers or ancillary restrictions?

Slovenian competition law is interpreted in accordance with EU competition law in this respect (as in any other competition regulation matters). Therefore, while not directly applicable, the principles contained in the European Commission's Notice on Ancillary Restraints are also relevant for the assessment of ancillary restrictions.

Generally, restrictions of competition that are ancillary to the merger, for instance a standard non-competition obligation on the seller, are considered inherent parts of the merger and are not subject to separate scrutiny under the general competition regulation. However, restrictions that go beyond what may be considered ancillary may be caught by the general prohibition on anti-competitive agreements.

The general competition regulation may in special circumstances be used to oppose a transaction as such (not merely a specific restriction in the transaction documents). For instance, the general prohibition on anti-competitive agreements may be applied to full-function joint ventures that have coordination of the market behavior of the parent companies as their object or effect. 

5) May an authority order a split-up of a business irrespective of a merger?

Yes.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Media

Acquisition of 20 percent of equity or management share or voting rights in the assets of a radio or television broadcaster or the publisher of an informative printed newspaper requires a prior consent of the Ministry of Culture. 

Financial businesses

Mergers involving financial businesses such as banks, insurance companies and other financial organizations require approval from the Bank of Slovenia in case of banks or the Insurance Supervision Agency in case of insurance companies. Mergers involving financial businesses are also subject to approval from the Slovenian Competition Agency, but with modifications regarding temporary ownership of businesses (see topic 19).

Foreign Investment Control

A foreign direct investment is an investment made by a foreign investor aiming to establish or maintain lasting and direct relations between the foreign investor and an undertaking with registered seat in Slovenia by acquiring at least 10 percent of equity share or voting rights. 

Any natural person who is a citizen or a legal person that has its registered office in an EU Member State, the European Economic Area, Switzerland, or in any third country, intending to make or having made a foreign direct investment, is considered a foreign investor.

A foreign direct investment has to be notified to the Ministry of Economic Development and Technology (“Ministry”) by either the foreign investor or the target, provided it concerns at least one of the following:

  1. critical infrastructure, whether physical or virtual, including infrastructure in the field of energy, transport, water, health, communications, media, data processing or storage, aviation and space sector, defence, electoral or financial infrastructure, and sensitive facilities, as well as land and real estate crucial for the use of such infrastructure; 
  2. critical technologies and dual use items as defined in point 1 of Article 2 of Council Regulation (EC) No 428/2009, including artificial intelligence, robotics, semiconductors, cybersecurity, aviation, space and defence sector, energy storage technology, quantum and nuclear technologies as well as nanotechnologies, biotechnologies, health, medical or pharmaceutical technology; 
  3. supply of critical inputs, including energy or raw materials, food security, medical or protective equipment;  
  4. access to sensitive information, including personal data, or the ability to control such information;
  5. the freedom and pluralism of the media, and
  6. projects or programs of Union interest listed in the Annex 1 to the Regulation 2019/452/EU establishing a framework for the screening of foreign direct investments into the Union. 

An "acquisition" that meets the above criteria has to be notified to the Ministry within 15 days from the conclusion of the agreement or from publication of a public takeover bid. 

Notification must also be made within 15 days in case of 

  1. a foreign direct investment by which a foreign investor or its subsidiary intends to invest by contribution of assets (i) in a new business unit, (ii) in expansion of the capacities of an existing business unit, (iii) in diversification of production with new products not previously produced in a business unit, or (iv) significant changes in the entire production process of an existing business unit (in the sectors specified above) by establishing a new undertaking in Slovenia (“greenfield investment”) or
  2. a foreign direct investment by which a foreign investor or its subsidiary obtains the right to dispose of land plots and real estate crucial for critical infrastructure or in its vicinity.

Notification is mandatory if the above-described requirements are met. The Ministry has a certain level of discretion as it decides on whether a review procedure shall be carried out for a specific notified transaction, as a notification does not automatically result in a review procedure. The Ministry must issue a decision within two months after the notification, however, the governing law also stipulates that the Ministry may review and potentially annul the transaction in the five-year period following the execution of a transaction. Thus, the provisions are somewhat unclear which represents an uncertainty for foreign investors. The Act governing foreign direct investment does not contain a specific requirement not to close the transaction before approval, however the transaction may be deemed null and void should the Ministry decide to annul the transaction after the review has been carried out.

7) Are any parts of the territory exempted or covered by particular regulation?

The Slovenian Competition Act covers the whole territory of the Republic of Slovenia.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided the transaction constitutes a merger within the meaning of the Slovenian Competition Act and the relevant filing thresholds are met.

The Slovenian Competition Agency may also initiate a merger procedure ex officio, if there is probability that a merger which is subject to provisions of the Slovenian Competition Act has occurred and the undertakings failed to notify it.

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

Yes, according to the Slovenian Competition Act a merger subject to merger control is defined as a permanent change in control of a business, namely:

  1. a merger of two or more previously independent undertakings or part of undertakings;
  2. one or more natural persons who already controls at least one undertaking, or where one or more undertakings by purchase of shares or assets, by contract or by any other means, acquire direct or indirect control of the whole or parts of one or more other undertakings, or
  3. where two or more independent undertakings create a joint venture that performs all the functions of an autonomous undertaking on a lasting basis.

Note that certain transactions of a temporary nature are not considered to be mergers subject to merger control (see topics 19 and 20).

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business.

However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

11) How is “control” defined?

The Slovenian Competition Act stipulates that control shall be constituted by rights, contracts or any other means that, either separately or in combination and with consideration of the facts or regulations involved, confer the possibility of exercising decisive influence on such undertaking or part of an undertaking. This in particular means: 

  1. ownership or the right to use all or part of the assets of an undertaking; 
  2. rights or contracts that confer a decisive influence on the composition, voting or decisions of the bodies of an undertaking.

Control may be held by persons or undertakings that are holders of rights or entitled to rights under the contracts concerned or have the actual possibility to exercise the rights deriving from contracts, while not being holders of rights or entitled to such on the basis of contracts.

Control may be held by one or more persons or businesses jointly. Establishment of joint control as well as changes in the group of owners with a controlling interest constitute change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, and when one of the existing owners sells its share to a third party.

Joint control may be established between a majority and a minority shareholder on the basis of veto rights regarding decisions that are essential for the strategic operation of the business. A merger will occur both when the joint control is established and again when it is dissolved; for instance, if a minority shareholder gives up certain essential veto rights so that the majority shareholder gains sole control.

"Control" and "Change of control" is interpreted according to EU competition law, including the EU Commission’s Consolidated Jurisdictional Notice.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control.

However, if acquisition of a minority interest confers someone with de facto control of a business, the transaction will be subject to merger control. This is, for instance, the case if the buyer is provided with veto rights regarding decisions that are essential for the strategic behavior of the business or if the remaining shares are spread over a large number of shareholders and the acquired shares de facto confer the buyer with a decisive influence on general meetings.

13) Joint ventures/joint control – which transactions constitute mergers?

The following transactions regarding businesses subject to joint control may be subject to merger control if the joint venture is "full function":

  1. Establishment of a joint venture.
  2. Change from joint to sole control.
  3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party.
  4. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
  5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. In the latter case, the competition authorities may consider that the transaction results in two separate mergers and that these should be assessed separately with respect to who are parties to the transaction and whether the thresholds for merger filing are exceeded.

A joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on restrictive agreements. Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture has an independent presence in the market.

Even if a joint venture is “full function” and therefore subject to merger control (provided the thresholds are met), the general prohibition on restrictive agreements may also be applied if the joint venture has coordination of the market behavior of the parent companies as object or effect.

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

A merger notification must be filed if:

  1. the aggregate annual turnover of the undertakings involved in the concentration, together with other undertakings in the group, on the market of the Republic of Slovenia exceeded EUR 35 million in the preceding business year, and
  2. the annual turnover of the acquired undertaking (together with other undertakings controlled by the acquired undertaking), on the market of the Republic of Slovenia exceeded EUR 1 million in the preceding business year or if in the case of a joint venture establishment, the annual turnover of at least two undertakings involved in the concentration, together with other undertakings in their respective groups, each exceeded EUR 1 million in the preceding business year.

b) Market share thresholds

Even if a merger does not meet the turnover thresholds and a merger notification is not required to be filed ”per se”, the Slovenian Competition Agency may call on the undertakings to notify the merger if the undertakings involved hold more than 60% market share on the Slovenian market and eventually, it may investigate the merger and either allow or prohibit the merger or impose measures. 

The Slovenian Competition Agency may call on the undertakings to notify the merger within 15 days from the day it has been informed about a merger which exceeds the “market share threshold”. Even though there is no clear obligation to inform the Slovenian Competition Agency about such merger and even no sanction for not informing the Slovenian Competition Agency thereon, the parties may want to inform the Agency, before implementation of the merger, in case there is a likelihood that the parties’ combined market share exceeds 60% market share. After being informed about the merger, the Slovenian Competition Agency will assess whether notification and consequent investigation of the merger is required. 

The existence of the obligation to inform as well as the Slovenian Competition Agency’s rights and powers in case the undertakings fail to inform it about the merger which exceeds the “market share threshold” is subject to uncertainty in Slovenia. Since there is also no obligation to submit a merger filing in case a merger exceeds the “market share threshold” (but does not reach the turnover thresholds) it is not clear whether the Slovenian Competition Agency may initiate a merger procedure ex officio, and, if so, in what period.

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions.

16) Rules on calculation and geographical allocation of turnover

Rules on calculation of turnover are in general terms provided in the Slovenian Competition Act. Nonetheless, except for what is described in topic 14, the legislation does not provide any further and specific instructions as to how the turnover is calculated and geographically attributed. The EU rules (i.e., the European Commission’s Consolidated Jurisdictional Notice) are observed in practice.

Turnover is calculated on the basis of the audited accounts of the preceding business year of the participating undertakings as well as any undertakings associated with each participating undertaking, including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies. Where a merger arises from the acquisition of control of a part or parts of one or more undertakings, the seller or sellers may consider the annual turnover relating to the parts which are the subject to the merger. The turnover a joint venture has with third parties must be divided equally between the controlling owners irrespective of their share in the capital and the actual distribution of profit, i.e., if the shares in a joint venture are divided 60/40 between two participants who exert joint control, half of the turnover of the joint venture must be attributed to each participant.

"Turnover" is the net turnover derived from sale of products and services within the undertaking’s ordinary activities generated the year before the merger after deduction of (i) value added tax and other taxes directly related to the sales and (ii) any turnover between associated undertakings.

Turnover must be adjusted to take account of any divestments or acquisitions of businesses after the end of the financial year that the turnover calculation is based on.

Is the seller/seller's group turnover relevant in a standard acquisition of sole control?

No.

17) Special rules on calculation of turnover for particular businesses

Insurance undertakings

For an insurance/reinsurance undertaking, the annual turnover includes the amount of gross written insurance premiums, which includes all revenues and receivables from insurance contracts, including reinsurance premiums paid, but reduced for the amount of taxes or social security contributions related to insurance premiums.

Credit institutions and other financial undertakings

The annual turnover of credit and financial institutions includes financial revenues from shares, financial revenues from granted loans and financial revenues from operating receivables.

18) Series of transactions that must be treated as one transaction

Two or more transactions involving change of control of a part of one or more undertakings, regardless of whether these parts have the status of a legal entity or not, that take place within a two-year period between the same persons or undertakings shall be treated as one and the same merger arising on the date of the last transaction.

See also topic 19 regarding temporary control.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

Merger filing is only required if there is a change of control on a lasting basis.

In accordance with the European Commission’s Consolidated Jurisdictional Notice change of control may be considered temporary – and therefore not require merger filing – if a transaction is divided into steps.

An example is where several undertakings jointly acquire control of another undertaking but according to a pre-existing plan, immediately after completion split the assets of the undertaking between themselves. In that situation, the temporary joint control will not be subject to merger filing, but the split-up of the assets may require one or several merger filings.

Another example of temporary control is when joint control is established for a limited period before the acquirer obtains sole control, for instance because the seller has agreed on an earn-out payment and the seller retains important veto rights for a limited period. Generally, if the period does not exceed 1 year, only the acquisition of sole control may be subject to merger filing.

Furthermore, Slovenian Competition Act stipulates that merger filing is not required when banks, insurance companies, savings banks or other financial companies whose usual activities include trading in securities for their own account or for the account of others, temporarily acquire business shares in the undertaking for the purposes of their further resale, provided that they do not exercise the voting rights arising from those shares in the meantime in order to influence the competitive conduct of that undertaking, or that they exercise those voting rights only in order to prepare for the sale of those shares and that sale is carried out within one year of the acquisition of the shareholdings.

20) Special industries, owners or types of transactions

Except for what is stated in topic 19, the Slovenian Competition Act does not specify industries, owners or types of transaction that would not be subject to merger control.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities.

23) Other exemptions from notification duty even if thresholds ARE met?

As a consequence of the EU "one-stop shop" principle, the Slovenian merger control rules do not apply if the thresholds for EU merger control are exceeded and the European Commission has not referred the merger to the Slovenian Competition Agency. 

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes, voluntary notification is possible. If the Slovenian Competition Agency establishes that a merger of which it has been notified does not fall within the scope of the provisions of the Slovenian Competition Act, it shall issue a decision thereon.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

The Slovenian Competition Agency may investigate mergers not meeting the prescribed turnover thresholds if the combined market share of the parties to the merger exceeds 60 percent on the market of the Republic of Slovenia.

See also topic 14 regarding market share thresholds.

Referral to and from other authorities

26) Referral within the jurisdiction

The Slovenian Competition Agency exclusively handles all mergers meeting the thresholds provided by the Slovenian Competition Act. However, mergers in certain industry sectors (financial industry, radio and television and printed media, foreign direct investments) may be subject to additional approvals of other competent authorities (see also topic 6).

27) Referral from another jurisdiction

The Slovenian merger control legislation does not provide for (additional) provisions for referrals from and to other jurisdictions. Thus, referrals have to be assessed in accordance with the EU merger regulation and the European Commission's Notice on Case Referral in respect of concentrations (see also topics 28 and 29).

Only mergers from the European Commission may be referred to the Slovenian Competition Agency for examination:

The European Commission may refer a merger in whole or in part to the Slovenian Competition Agency where the merger in question affects a distinct market or markets within Slovenia. Such referrals may be requested either by the notifying party/parties before a merger notification has been filed or by the Slovenian Competition Agency after a formal filing has been made. In case of a partial referral, the European Commission will continue the examination of the non-referred part, whereas the Slovenian Competition Agency will handle the strictly Slovenian aspects.

Rules on the conditions and procedure for referrals from the European Commission are set out in Article 4 (4) of the EU Merger Regulation (for requests of the notifying party/parties) and in Article 9 (2) (for requests of the Slovenian Competition Agency).

Note that only transactions subject to merger control under the Slovenian Competition Act may be referred from the European Commission to the Slovenian Competition Agency.

28) Referral to another jurisdiction

Save for referrals to the European Commission, a merger cannot be referred to competition authorities in other jurisdictions.

If the merger is notifiable in at least three EU member states, the notifying party/parties may request at pre-notification stage that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities (see topic 29). Article 4 (5) of the EU Merger Regulation provides rules on the specific conditions and procedure for referrals from the European Commission on request of the notifying party/parties.

The Slovenian Competition Agency may also request the European Commission to examine a merger that does not have an EU dimension within the meaning of Article 1 of the EU Merger Regulation but affects trade between EU member states and threatens to significantly affect competition in Slovenia after a formal filing has been made under the conditions and procedure laid down in Article 22 of the EU Merger Regulation.

29) May the merging parties request or oppose a referral decision?

The notifying party/parties may request a referral to or from the European Commission in accordance with EU merger control rules (see topics 27 and 28).

On the other hand, the national authorities do not require the consent of the notifying party/parties in order to ask for a referral of a merger under the EU Merger Regulation, although the parties are permitted to make comments opposing referrals both to the European Commission and the Slovenian Competition Agency.

Filing requirements and fees

30) Stage of transaction when notification must be filed

A merger notification must be filed prior to the implementation of the merger but not later than 30 days after the conclusion of the contract, the announcement of the public takeover bid, or the acquisition of control. This time limit begins when the first of these events occurs.

The merger notification may also be submitted based on a letter of intent, memorandum of understanding or other non-binding act which show a parties’ serious (good faith) intent to implement a merger – in such cases, there is no deadline for submission of notification.

When the European Commission, based on a request pursuant to Article 4 of Regulation 139/2004/EC, decides not to appraise the merger, it must be notified to the Slovenian Competition Agency no later than 30 days after the undertaking that is obliged to notify the Slovenian Competition Agency of the merger has been informed of the decision of the European Commission.

31) Pre-notification consultations

Under Slovenian merger control rules, pre-notification consultations with the Slovenian Competition Agency are not required, and although possible, not very common in cases that do not raise any substantive issues. However, it can be beneficial to have pre-notification contacts with the Slovenian Competition Agency in more critical cases to avoid a lengthy in-depth (phase II) examination or if there are doubts as to whether a filing is necessary.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Mergers that are a consequence of acquisition of securities on a stock exchange or a public takeover bid must be notified 30 days after the acquisition/publication of the takeover bid. This is aligned with the general rule on the notification deadline presented in topic 30.

Generally, undertakings are not allowed to exercise rights and obligations arising from a merger that is subject to the obligation of notification until a decision declaring the merger compatible with the competition rules has been issued. The prohibition of the implementation of a merger shall, however, have no effect on:

  1. the implementation of a public bid pursuant to the law regulating takeovers provided that the acquirer does not exercise voting rights or only does so on the basis of an exemption granted by the Slovenian Competition Agency; 
  2. the validity of transactions in securities, including those which are convertible into other securities, admitted to trading on the organised market, unless the buyer and seller know or ought to have known that the transaction was carried out in contravention of the general rule on prohibition of exercising rights and obligations arising from a merger before a merger approval is issued (“gun jumping”).

Please also note that besides merger control, special regulations apply for handling of acquisitions on stock exchanges and public takeover bids, including a requirement for approval of offer documents from the Slovenian Securities Market Agency prior to being made available to the public.

33) Forms available for completing a notification

There is a form available in Slovenian language (see link under topic 3). The notification form contains the following chapters within which detailed and specific information is sought:

  1. Identification of the undertakings involved in the merger.
  2. Details on the merger.
  3. Ownership and control of the undertakings involved in the merger.
  4. Details on personal and financial connections and previous acquisitions.
  5. Details on relevant industry markets.
  6. Details on ancillary restrictions.
  7. Details on joint ventures (if any).
  8. Details on notifications filed to other competent authorities.
  9. Other relevant information.

If the merger will not lead to a joint market share exceeding 15% or (i) if the market share does not exceed 25% for any individual undertaking or (ii) a joint market share does not exceed 25% for undertakings involved in the merger on any market vertically connected with markets on which another participating undertaking is involved, details on “relevant industry markets”that have to be provided in the notification form is limited to the following content:

  1. market size,
  2. sales volume, value of sales and market share, and
  3. most important competitors.

34) Languages that may be applied in notifications and communication

Only Slovenian. All supporting documents generally must also be submitted in Slovenian, although documents in English language are usually accepted by the Slovenian Competition Agency (e.g. annual reports). However, the Slovenian Competition Agency may request translation of any documentation or information provided in foreign language at any time at their own discretion.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification:

  1. Power of attorney for representation.
  2. Relevant parts of books and records or annual reports from which the annual turnover numbers are derived.
  3. Audited annual financial statements and annual reports for last three financial years for each of the parties to the merger.
  4. Notarized copies of final or most recent versions of documents on the basis of which the merger is implemented. In case of a public takeover bid, a copy of the public takeover bid should be submitted. In case the public takeover bid is unavailable at the time of notification, it must be submitted as soon as possible, but in any case no later than being submitted to the shareholders.
  5. Copies of analyses, studies, research or similar documents that have been submitted or prepared for or by any member of management, supervisory board, management board or for or by another person who performs similar tasks, or shareholders, for an assessment or analysis of market shares, competition conditions, competitors (actual or potential), reasons for the merger, possibilities for sale increase or expansion to other products/service or geographic market and/or general market conditions.
  6. A statement that all information in the notification is true, that the copies of the attached documents are authentic and complete and that all sent assessments are the best possible estimates based on the information available.

Undertakings are also required to enclose a specific form in which they confirm the publication of information on the website of the Slovenian Competition Agency that the review of the notified merger proceeding was initiated. If the notifying party objects to publication, it must provide the Slovenian Competition Agency with an explanation as to why they do not wish to make such a publication. The Slovenian Competition Agency will not publish the information on their website if the reasons for objection are well-founded.

36) Filing fees

The filing fee for notification is EUR 2,000.00.

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Yes, the standstill obligation is prescribed by the Slovenian Competition Act. The merging businesses must be run separately and independently until the merger has been approved. However, normal preparatory reversible steps are not prohibited.

Please also see topic 32 regarding public takeover bids and acquisitions on stock exchanges.

38) May the parties get permission to implement before approval?

In exceptional cases and based on the proposal of an undertaking, the Slovenian Competition Agency may issue a procedural decision permitting the implementation of a merger within a specified scope and under specified conditions prior to issuing a final decision in the matter, provided that the undertaking can demonstrate in its proposal that such implementation is essential to maintain the full value of the investment or to perform services of general interest. The Slovenian Competition Agency considers, in particular, the effects of the suspension of the implementation of the merger on one or more undertakings involved in the merger or on a third person and the threat to the effectiveness of competition posed by the merger.

39) Due diligence and other preparatory steps

Although there are no formal or informal guidelines provided by the Slovenian Competition Agency, it is advisable to conduct due diligence in a way that prevents sensitive market information from being used for purposes other than assessing the viability of the merger.

An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” of the Slovenian part of a transaction to avoid delaying implementation in the rest of the world pending approval in Slovenia.

It must be assessed on a case-by-case basis whether the implementation of a merger outside of Slovenia and the Slovenian part of the transaction being "carved out" are sufficiently autonomous. If there is interdependency of the Slovenian part of the transaction, "carve-out" often may not be possible.

42) Consequences of implementing without approval/permission

Legal actions that are performed without approval/permission are deemed to be null and void. If a merger prohibited by the Slovenian Competition Agency has been implemented or has begun to be implemented, the Slovenian Competition Agencymay impose measures on the undertakings involved in the merger to restore the situation that existed prior to the implementation of the merger, in particular through the division of the undertaking or the disposal of all of the shares acquired.

The fines for misdemeanor are the same as for failure to notify a merger or submitting a late notification. Namely, a legal person or sole proprietor who, contrary to the provisions of the law, exercises rights or obligations arising from the merger, may be punished with a fine of up to 10 percent of the annual group-turnover from the previous business year of the undertaking participating in the merger.

The responsible person of a legal entity or a sole proprietor may be fined in the amount of EUR 5,000.00 to 10,000.00. A natural person who already controls at least one undertaking may be fined between EUR 3,000.00 and 5,000.00.

If the nature of the offense committed is particularly severe due to the amount of damage caused or the amount of illegally obtained financial benefit or due to the perpetrator's intent or its purpose of self-interest, the responsible person of the legal entity or a sole proprietor may be fined in the amount of EUR 15,000.00 to 30,000.00, and a natural person who already controls at least one company may be fined in the amount of EUR 10,000.00 to 15,000.00.

The process – phases and deadlines

43) Phases and deadlines

 Phase

 Duration/deadline

Pre-notification phase:

There are no formal rules on pre-notification consultations, and normally the Slovenian Competition Agency does not prefer consultations prior to formal notification.

No set duration or deadline.

Assessment of completeness of notification:

When the merger notification has been formally submitted, the authority will assess whether the notification is complete – there is no formal deadline for assessment of completeness of the notification. If the notification is deemed incomplete, the authority must provide the parties with an additional request for information and provide a deadline for response.

No set duration or deadline.

Phase I:

If the Slovenian Competition Agency establishes that a particular merger does not fall within the scope of the Slovenian Competition Act, it issues a decision thereon.

In other cases, the merger is either approved (with commitments if relevant) or it is decided to initiate a phase II investigation of the merger.

Formally, the Slovenian Competition Agency may undertake the same types of investigations under phase I and II, and the authority may also negotiate commitments in both phases. However, complex and/or problematic mergers will often require the longer deadlines applicable in phase II.

25 days after the receipt of the complete notification.

Extension:
No formal possibility for extension, however the Slovenian Competition Agency may restart the clock by posting new request for information.

Phase II:

The merger is either approved, approved with conditions/commitments or prohibited.

Normally, the Slovenian Competition Agency will undertake a detailed market survey, by collecting information from the undertakings active on the relevant market(s). Once sufficient information is collected, the authority will issue a formal statement.

The investigation is likely to involve detailed market surveys, economic analysis and possibly negotiation of commitments that may eliminate the concerns that the authority may have regarding anti-competitive effects of the merger.

60 days from the date when the phase II investigation was initiated.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

It is assessed whether the merger will "significantly impede effective competition – in particular due to the creation or strengthening of a dominant position".

A range of factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defense) and whether one of the parties is likely to fail as an independent business (failing firm defense).

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers, but if the joint venture also has coordination between the owners as object or effect, it will also be assessed whether such coordination is acceptable under the general prohibition against restrictive agreements.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

If the Slovenian Competition Agency expresses serious concerns about the merger, it is important that the parties enter into negotiations of possible commitments well before the expiry of the deadlines, as the authority will normally only consider an approval with conditions if the parties have offered commitments.

Commitments may take any form and they can be either structural or behavioral and with or without time limitations.

The authority may revoke an approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments contained in the approval.

If a merger has been implemented without approval, the Slovenian Competition Agency may prohibit the merger and order a separation of the businesses or any other measure capable of restoring competition, including a monetary fine for the infringement.

Publicity and access to the file

48) How and when will details about the merger be published?

The Slovenian Competition Agency first publishes information on its website that the review of the notified merger proceeding was initiated (unless the notifying party objects to publication, and the reasons for objection are considered by the Slovenian Competition Agency to be well-founded).

The Slovenian Competition Agency will generally make a public announcement when it reaches a final decision concerning the merger. The decision published will be redacted of all confidential information of the parties to the merger. It will normally take a while for the Agency to publish the redacted version of the decision.

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right to access to the file, which includes correspondence with third parties that the Slovenian Competition Agency may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the authority will only provide redacted documents/correspondence. There is no right of access to the authority’s internal documents and correspondence.

Third parties:

Third parties do not have access to the case file.

Judicial review

50) Who can appeal and what may be appealed?

The decisions of the Slovenian Competition Agency are not subject to administrative appeal but may be challenged via submission of an administrative lawsuit before the Administrative Court.


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