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Content last updated: 29-08-2019

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  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Overall description of merger control regime

1.1 Supranationality

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

Yes, Slovenia is a member state of the EU, which is a supranational jurisdiction for the Member States, i.e. the 28 EU member states and the three EFTA members Iceland, Liechtenstein and Norway.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

Concentrations falling within the jurisdiction of the EU Merger Regulation are not subject to the Slovenian merger control regime, therefore such transactions will only have to be notified to the European Commission.

Consequently, the Slovenian Competition Protection Agency will as a general rule be precluded from applying the Slovenian merger control rules to such transactions unless the EU Merger Regulation allows it to intervene.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Filing is mandatory, if the thresholds described in Section 2.3.1 under the Merger Screening Schedule are met.

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

Exercise of rights and enforcement of obligations deriving from a notifiable concentration is prohibited. However, this prohibition does not affect the carrying out of a takeover offer and does not affect the validity of transactions with publicly traded securities (unless both parties are aware or should have been aware that the closing prohibition was breached). In addition, each notifying party may request that the Slovenian Competition Protection Agency allows the concentration to be implemented in a limited scope and/or under certain conditions, prior to issuing clearance, provided that the notifying party shows that such implementation is essential to maintain the value of the acquisition or in order to provide services of general interest.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

A transaction is caught by the merger control rules if it brings a change of control on a lasting basis resulting from:

a) the merger of two or more previously independent undertakings or parts of undertakings; or

b) the acquisition, by one or more natural persons who already control at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by any other means, of direct indirect control of the whole or parts of one or more other undertakings.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

The creation of a joint venture by two or more independent undertakings, performing on a lasting basis all the functions of an autonomous economic entity (i.e. a so-called “full function” joint venture).

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

“Control” is defined as possession of rights, contracts and/or any other means that confer the possibility of exercising decisive influence over an undertaking or part of an undertaking, and in particular:

a) ownership or the right to use all or part of the undertaking’s assets; and/or

b) rights or contracts that confer a decisive influence on the composition, voting or decision of the bodies of the undertaking.

“Control” is acquired by persons or undertakings that:

a) are holders of rights, or entitled to rights, under the relevant contracts; or

b) while not being holders of such rights or entitled to such rights under the relevant contracts, have the power to exercise the rights deriving from those contracts.

As an exception, no concentration arises when banks, insurance companies, savings institutions or other financial institutions (the normal activities of which include transactions and dealing in securities for their own account or for the account of others) hold on a temporary basis shares that they have acquired in an undertaking with a view to reselling them, provided that:

a) they do not exercise voting rights in respect of those shares with a view to determining the competitive behavior of that undertaking or they only exercise such voting rights for the purposes of the disposal of such shares, and

b) they dispose of such shares within one year of the date of acquisition (whereby the Slovenian Competition Protection Agency is entitled upon request to prolong this one-year term).

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

Minority and other interests less than control are not caught by the merger control rules, provided that control condition is not fulfilled jointly with other minority holders.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1.

In a merger, the "undertakings concerned" are each of the merging entities (together with all entities belonging to the same respective groups as the merging entities).

In an acquisition of control, the undertakings concerned may vary depending on the characteristics of the transaction.

In case of acquisition of sole control, the undertakings concerned are the acquiring undertaking (together with all entities belonging to the same group) and the target undertaking (together with all entities controlled by the target undertaking).

In case of acquisition of joint control of a newly created joint venture, the undertakings concerned are each of the undertakings jointly acquiring control (together with all entities belonging to their respective groups). The same applies where one undertaking contributes a pre-existing subsidiary or a business (over which it exercises sole control) to a newly created joint venture.

In case of acquisition of joint control over a pre-existing undertaking or business, the undertakings concerned are each of the undertakings acquiring joint control (together with all entities belonging to their respective groups), and the pre-existing acquired undertaking.

In case of entry of a new shareholder in a pre-existing joint venture, which leads to a change in the quality of control for the remaining controlling shareholders, the undertakings concerned are the newly entering controlling shareholder (together with all entities belonging to its group) alongside with the remaining controlling shareholders (together with all entities belonging to their respective groups).

In case of change from joint control to sole control, the undertakings concerned are the undertaking acquiring the sole control (together with all entities belonging to its group) and the joint venture (together with its controlled entities). The other "existing" shareholder (i.e. the seller) is not considered an undertaking concerned.

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

Whether the transaction is notifiable should be determined at the time of the deadline to file a notification. This is within 30 days following the earlier of:

a) the date of conclusion of the (first binding) contract,

b) the date of announcement of the public bid, or

c) the date of actual acquisition of control.

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

A concentration will have to be notified to the Slovenian Competition Protection Agency if:

a) The combined aggregate turnover of the undertakings concerned, together with all entities belonging to their respective groups, exceeded EUR 35,000,000 on the Slovenian market in the preceding business year; and

b) the annual turnover of the acquired undertaking (together with its controlled entities), exceeded EUR 1,000,000 on the Slovenian market in the preceding business year, or, in the case of a joint venture, the annual turnover of at least two undertakings concerned (together with all entities belonging to their respective groups) exceeded EUR 1,000,000 on the Slovenian market in the preceding business year.

2.3.2 For each threshold, can the threshold be triggered by only one party having local turnover?

Yes, the threshold may be triggered by only one of the undertakings concerned having turnover in Slovenia, provided that the annual turnover of the acquired undertaking (together with its controlled entities), exceeded EUR 1,000,000.

For joint ventures specifically, the threshold cannot be triggered by only one of the undertakings concerned having turnover in Slovenia.

2.3.3 For each threshold, can the threshold be triggered without any party having local turnover?

Neither of the thresholds can be triggered without any of the undertakings concerned having turnover in Slovenia.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

Even if a transaction does not reach the thresholds, the Slovenian Competition Protection Agency may ask the undertakings concerned to notify the concentration if they, together with other undertakings in the group, hold more than a 60% market share on the Slovenian market.

The Slovenian Competition Protection Agency is entitled to make such a request no later than 15 days following the date on which the undertakings concerned informed the Slovenian Competition Protection Agency of the implementation of the concentration (either on their own or following an inquiry by the Slovenian Competition Protection Agency).

This puts the parties involved into an uncertain position. Therefore, it is recommended to inform the Slovenian Competition Protection Agency of such mergers even though there is no explicit obligation to notify.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

There are no sector-specific or other ex ante rules relating to merger control.

Separate regulatory approvals are required in certain sectors, such as media, banking, energy and insurance, and these do in certain cases (such as with respect to the media) also concern market effects.

2.4.2 Are any such schemes mandatory or voluntary?

Not applicable.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

There are no exemptions for foreign-to-foreign mergers. Transactions meeting the above thresholds have to be notified to the Slovenian Competition Protection Agency, regardless of whether the undertakings concerned are domiciled outside of Slovenia.

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

The relevant turnover to be taken into account is the net turnover related to the sale of goods and/or services exclusive of group internal sales.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

Currently, no such guidance is available.

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

The turnover figures should be based on the previous business year. This means that, if the business year ends on 31 December, the new turnover figures should be considered from 1 January on, irrespective of when the annual accounts are prepared. 

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Adjustments must be made for any divestitures/acquisitions made after or during the relevant financial year. Turnover stemming from such divested/acquired assets should be excluded/included.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The "undertakings concerned", i.e. which parties?

See Section 2.1.1 above.

3.3.2 The undertakings whose turnover is taken into account?

See the definition of the "undertakings concerned" in Section 2.1.1 above. In short, the group of undertakings whose turnover is taken into account comprises the entire group that the acquirer belongs to and the target's controlled entities (i.e. the target and any of its wholly or jointly-controlled subsidiaries).

3.3.3 Shall the turnover of the existing seller be included in the target's group turnover?

The seller's turnover shall not be included in the target's group turnover.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

The Slovenian Competition Protection Agency uses the applicable EU rules in this respect. There are no detailed national rules.

In general, the turnover should be allocated geographically based on where the customer was located at the time of the turnover generating transaction, i.e. typically where the goods were actually delivered or services actually provided. Detailed rules exist for cases in which the service provider and/or the customer travel.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Not applicable.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

The market share should be calculated on the relevant product/service market of the Republic of Slovenia (irrespective of the actually relevant geographic market for such product/service market). It can be achieved by only one party or several of them aggregately. The market share on any Slovenian product/service market should be considered, irrespective of whether such product/service market constitutes a part of the transaction.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Specific rules apply to the calculation of turnover for credit and financial institutions and insurance undertakings. As regards investment funds and state-owned undertakings, the Slovenian Competition Protection Agency uses the EU rules contained in the Jurisdictional Notice.

3.7.2 Does any exemptions apply?

Not applicable.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

In case of acquisition of sole control, the acquirer is responsible for filing.

In case of acquisition of joint control, a merger creating a new entity or creation of a joint venture, the notification must be jointly submitted.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

The concentration must be notified prior to its implementation, but no later than 30 days following the earliest of:

a) the date of conclusion of the (first binding) contract,

b) the date of announcement of the public bid, or

c) the date of actual acquisition of control.

A concentration may also be notified prior to any of the above events.

1.2.2 Are there any sanctions for not filing within the deadlines?

The sanction for not filing within the deadline is:

a) For the responsible legal person or a sole proprietor: a fine of up to 10 % of the annual turnover of the undertaking concerned together with other undertakings in the group in the preceding business year, and

b) For the responsible individual within the legal entity or sole proprietor: a fine between EUR 5,000 and EUR 10,000, or up to EUR 30,000 in particularly serious cases, and

c) For the natural person already controlling at least one undertaking: a fine between EUR 3,000 and EUR 5,000, or up to EUR 15,000 in particularly serious cases.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

It is not prohibited to notify the concentration before singing of the transaction agreement. However, in this case, the undertakings concerned are obliged to state the proposed or expected date of signing (as well as all other major events regarding the concentration). In the event that the situation on the relevant market changes significantly during the period between the notification of the concentration and its implementation, the concentration must be again notified to the Slovenian Competition Protection Agency.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

There is a filing fee of EUR 2,000.

1.4.2 When must the filing fee must be paid?

The filing fee has to be paid upon filing of the notification with the Slovenian Competition Protection Agency.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

The notifying party (or parties) have to complete a “publication statement” together with the notification. If allowed in such a publication statement, the Slovenian Competition Protection Agency publishes a notice regarding the commencement of the procedure on its website. In case the notifying party (or parties) does not wish that the information becomes public, they must provide justifiable reasons for confidential treatment. In such a case, the commencement of the procedure will be made publicly known by the Slovenian Competition Protection Agency after the confidentiality reasons cease to exist, or at the latest, at the time when the Slovenian Competition Protection Agency makes a final decision or a decision to open Phase II investigations.

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

The Slovenian Competition Protection Agency publishes on its website certain information regarding notified concentrations as well as any decision to open Phase II procedures.

Following the adoption of a decision, the non-confidential version of the decision will also be published on the Slovenian Competition Protection Agency website.

1.5.3 Will third parties be able to review the notification?

Third parties who wish to participate in procedures before the Slovenian Competition Protection Agency have to prove that they have legal interest to do so. It is up to the Slovenian Competition Protection Agency to decide whether it shall grant this right to such third parties. However, such right is generally not granted due to the fact that economic interest is not considered legal interest under Slovenian law. In case the Slovenian Competition Protection Agency grants to a third party the right to participate in a procedure, this includes the right to review the notification.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

There are no simplified (fast track) procedures. However, certain parts of the notification form do not need to be completed if the combined market shares of the undertakings concerned do not exceed 15% on any markets where they both compete (horizontal links) or 25% on any vertically related markets.

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

Merger procedures before the Slovenian Competition Protection Agency (CPA) are usually initiated with the submission of a formal notification. If a notifiable concentration is not notified in time, the CPA also has the right to initiate the procedure ex officio by requesting a notification.

When the formal notification is submitted to the CPA and the notifying party (or parties) allow public disclosure, the CPA publishes on its website certain information regarding the notified concentration.

The CPA decides in “Phase I” procedure if:

a) the notified concentration does not fall within the scope of the Slovenian Competition Act; or

b) the notified concentration does not raise serious doubts as to its compatibility with Slovenian competition law.

As part of the investigation, the case team may, and usually does, send requests for information, engage in discussions and meetings with the notifying parties.

During such communication, the case team may also suggest remedies if they consider them necessary for clearing the transaction. If the notifying parties submit remedies, the CPA has to assess them and may also decide to market test them.

If the concentration is cleared in Phase I, the CPA shall issue its decision within 25 working days of the receipt of a complete notification (with a possibility of prolongation by 15 working days if the parties propose remedies), whereby it is customary for the CPA to ask for amendments of the notification (which re-starts the decision-making clock in Phase I).

In cases that raise serious doubts as to their compatibility with Slovenian competition law, the CPA initiates a “Phase II” procedure within 25 working days of receipt of a complete notification. Once the CPA has initiated Phase II, the Slovenian Competition Act foresees issuance of a decision within 60 working days of initiating such Phase II procedure (with a possibility of prolongation by 15 working days if the parties propose remedies), however such deadline is usually not followed in practice.

At the time of commencement of the Phase II procedure, the CPA publishes the decision to open it on its website, inviting third parties to submit their observations and comments to the transaction.

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

Pre-notification contact to the Slovenian Competition Protection Agency is not customary nor encouraged, though still possible, especially in case of any open questions concerning the duty to notify.

2.2.3 Are there any sanctions for not filing within the deadlines?

Regarding sanctions for not filing within the deadlines please see Section 1.2.2 above.

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

Phase I:

Starting from the first working day after the formal filing has been submitted by the notifying parties, the Slovenian Competition Protection Agency has 25 working days to decide whether to clear the transaction in Phase I or open a Phase II procedure (with a possibility of prolongation of this decision-making term by 15 working days if the parties propose remedies), whereby it is customary for the Slovenian Competition Protection Agency to ask for amendments of the notification (which re-start the decision-making clock in Phase I).

Phase II:

The Phase II procedure period is 60 working days, which starts to run from the end of the Phase I period (with a possibility of prolongation of this decision-making term by 15 working days if the parties propose remedies). However, such decision-making deadline is usually not followed in practice.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

If the Slovenian Competition Protection Agency believes that certain information is missing or is unclear, it shall summon the notifying party to provide the missing information or clarify the provided information. In such case the clock starts running anew after each provision of such additional information/responses.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

Even though pre-notification is possible, there is no statutory timetable/deadline for the pre-notification period. Duration of such period varies in practice, but usually pre-notification contact is limited to one-time contact with the Competition Protection Agency.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

The Slovenian Competition Protection Agency has a mandatory notification form, which is prescribed by the government’s Decree on the content of notification form for the concentration of undertakings. The form requires rather detailed information and is based on the Form CO. Some responses in this form may be omitted if the combined market shares are below the applicable thresholds (see Section 2.1.1 above), or if the Slovenian Competition Protection Agency agrees that such responses are not necessary for the assessment of the respective concentration.  

Please see: http://www.pisrs.si/Pis.web/pregledPredpisa?id=URED5098

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Cf. checklist below.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Not applicable. 

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

In case certain documents are not submitted together with the notification, the notification may be amended (either on the notifying parties’ own initiative or request of the Slovenian Competition Protection Agency).

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

The notification can be made only in the Slovenian language.

3.4.2 Does translations have to be certified/legalized and apostilled?

Certified translations of foreign language documents are generally required.

Statutory timetable

Step Description Time
1

Pre-notification

Pre-notification contact to the Slovenian Competition Protection Agency is not customary nor encouraged, though still possible, especially in case of any open questions concerning the duty to notify.

Even though pre-notification is possible, there is no statutory timetable/deadline for the pre-notification period. Duration of such period varies in practice, but usually pre-notification contact is limited to one-time contact with the Competition Protection Agency.

2

Phase I

Merger procedures before the Slovenian Competition Protection Agency (CPA) are usually initiated with the submission of a formal notification.

There are no simplified (fast track) procedures. However, certain parts of the notification form do not need to be completed if the combined market shares of the undertakings concerned do not exceed 15% on any markets where they both compete (horizontal links) or 25% on any vertically related markets.

If a notifiable concentration is not notified in time, the CPA also has the right to initiate the procedure ex officio by requesting a notification.

When the formal notification is submitted to the CPA and the notifying party (or parties) allow public disclosure, the CPA publishes on its website certain information regarding the notified concentration.

The CPA decides in “Phase I” procedure if:

a) the notified concentration does not fall within the scope of the Slovenian Competition Act; or

b) the notified concentration does not raise serious doubts as to its compatibility with Slovenian competition law.

As part of the investigation, the case team may, and usually does, send requests for information, engage in discussions and meetings with the notifying parties.

During such communication, the case team may also suggest remedies if they consider them necessary for clearing the transaction. If the notifying parties submit remedies, the CPA has to assess them and may also decide to market test them.

Starting from the first working day after the formal filing has been submitted by the notifying parties, the Slovenian Competition Protection Agency has 25 working days to decide whether to clear the transaction in Phase I or open a Phase II procedure (with a possibility of prolongation of this decision-making term by 15 working days if the parties propose remedies), whereby it is customary for the Slovenian Competition Protection Agency to ask for amendments of the notification (which re-start the decision-making clock in Phase I).

3

Phase II

In cases that raise serious doubts as to their compatibility with Slovenian competition law, the CPA initiates a “Phase II” procedure.

At the time of commencement of the Phase II procedure, the CPA publishes the decision to open it on its website, inviting third parties to submit their observations and comments to the transaction.

The Phase II procedure period is 60 working days, which starts to run from the end of the Phase I period (with a possibility of prolongation of this decision-making term by 15 working days if the parties propose remedies). However, such decision-making deadline is usually not followed in practice.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

  • Step 1 1
  • Step 2 2
  • Step 3 3
  • Not defined
  • 25 + 15 days + extensions
  • 60 + 15 days + extensions

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

Supporting documentation

This content was delivered
and last updated on 29-08-2019 by
Contact Person
Nataša Pipan Nahtigal, Partner
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