1)    Can the Agency answer the pre-notification question whether the transaction described constitutes an obligation to notify a concentration?

In accordance with the provisions of the ZPOmK-2, the Agency does not issue legally binding opinions on the obligation to notify a concentration, which would provide legal certainty to undertakings. It is for the undertaking which acquires control of another undertaking to assess whether the obligation to notify a concentration exists. The Agency can determine whether or not the notified transaction constitutes a concentration to be notified to ZPOmK-2 only in the process of assessing the concentrationā€™s compliance with the competition rules.

2)    The deadline for completion of the concentration (i.e. suspensive condition for closing the deal) is fast approaching, and the Agency has still not issued a decision or it is highly likely that it will not be within the time limit set in our contractual provisions. What can we do?

The Agency is not obliged to comply with the suspensive terms and conditions in the purchase or other similar contracts on the transfer of shares concluded between the notifying parties to the concentration and the holders of shareholdings in the acquired companies, according to which the execution of a particular transaction depends, inter alia, on the adoption of a decision of the Agency, since the assessment of the conformity of concentrations with the competition rules before the Agency is conducted on the basis of the provisions and deadlines laid down by the ZPOmK-2. 

The responsibility for timely implementation of concentrations is thus on the part of the contracting parties, not the Agency, therefore the Agency calls on companies that notify concentrations to take this into account when formulating contractual provisions or suspensive conditions.

3)    Do companies established abroad have to notify the concentration to the Agency?

The concentration must also be notified to the Agency by undertakings established abroad if they fulfil the legal and economic condition for notification. In order to satisfy the legal criteria, it is sufficient if companies from abroad exceed the turnover thresholds on the Slovenian market and do not need to be organised in one of the legal forms of status in the Republic of Slovenia.

Of course, a concentration does not have to be notified to the Agency if the thresholds for the Community dimension laid down in EC Merger Regulation are exceeded and assessed by the European Commission.

4)    Can the parties notify a concentration prior to the occurrence of any of the events giving rise to the obligation to notify?

The concentration must be notified no later than 30 days from the conclusion of the contract or the announcement of the public offer or of the acquisition of control, the period for notification running from the first of these events. A concentration may also be notified earlier on the basis of a good faith intention to enter into a contract or, in the case of a public offer, where undertakings have made public the intention of such an offer. However, the parties to the intended concentration shall be obliged to indicate the expected dates of each of them for the implementation of the concentration of major events. In the event that, during the period between the notification of the concentration and its implementation, the situation on the relevant market changes significantly, the concentration should be re-notified to the Agency.

5)    Is there a concentration where financial companies acquire shareholdings in an undertaking?

Article 9(4) ZPOmK-2 provides that there is no concentration where banks, insurance companies, savings banks or other financial companies whose normal activities involve trading in securities on their own account or for the account of others temporarily acquire shares in a company for the purpose of reselling them, provided that they do not exercise the voting rights attaching to those shares in order to influence the competitive behaviour of that company or exercise those voting rights only in order to prepare for the sale of those shares and such sale takes place within one year of the acquisition of the shares. At the request of the company, the Agency may extend the one-year period by decision where the company demonstrates that the sale could not be carried out properly within the prescribed time limit.

6)    What is the annual turnover of the undertakings involved in the concentration together with the other undertakings in the group?

The annual turnover of the undertakings concerned, together with other undertakings in the group, comprises the net turnover of the products and services generated in the concentration by the undertakings concerned during the financial year together with other undertakings in the group, but does not include the net turnover from the sale of goods and services between the undertakings in the group. Where a concentration arises from the acquisition of control over a part or parts of one or more undertakings, account shall be taken, in the case of the seller or sellers, of the annual turnover relating to the parts which are the subject of the concentration. Where the undertakings of a group together with third undertakings have control in the joint venture, the annual turnover of the joint venture shall be apportioned equally among them, irrespective of their share of capital or voting rights. In the case of subsidiaries, the total turnover of the subsidiary concerned shall, in principle, be taken into account, irrespective of the actual holding of the undertaking concerned in the subsidiary.

7)    What is the annual turnover of credit and financial institutions and insurance companies?

Due to the specificities of certain activities, which are already reflected in the form or structure of the accounts, a general definition of annual turnover is not always appropriate. A specific definition is therefore drawn up for the annual turnover of credit and financial institutions and insurance undertakings.

The annual turnover of credit and financial institutions comprises financial income from holdings, financial income from loans granted and financial income from business receivables.

However, the annual turnover of insurance undertakings includes the amount of gross written premiums, comprising all income and receivables from insurance contracts, including reinsurance premiums paid, minus taxes or contributions related to insurance premiums.

8)    What are the consequences of omission or late notification?

See chapter ā€œAdministrative sanctions in concentrationsā€.

9)    Can undertakings exercise the rights and obligations arising from the concentration prior to the adoption of a decision on the conformity of the concentration with the rules of the concentration?

The first paragraph of Article 68 of the ZPOmK-2 provides that companies may not exercise the rights and obligations arising from a concentration for which there is an obligation to notify the Agency until a decision is taken on the conformity of the concentration with the competition rules.

The Agency may, exceptionally, at the request of an undertaking, issue a decision authorising the implementation of a concentration to a certain extent or under certain conditions prior to the adoption of a decision if the undertaking demonstrates that such enforcement is necessary for the maintenance of the value of the investment or for the provision of services of general interest. The Agency shall issue a decision on authorising or refusing to enforce the concentration within 15 working days of receipt of the proposal of the undertaking (Article 68(4) and (5) of the ZPOmK-2), taking into account in particular the effects of suspension of the concentration on one or more of the undertakings involved in the concentration or on third parties and the danger that the concentration poses to the effectiveness of competition.

10)    What are the consequences if an undertaking exercises the rights and obligations arising from a concentration for which there is an obligation to notify the Agency prior to the adoption of a decision on the conformity of the concentration with the rules of the concentration?

See chapter ā€œAdministrative sanctions in cases of concentrationsā€.

11)    What is the Difference Between Confidential Data and Trade Secrets?

Points 16 and 17 of Article 3 ZPOmK-2 define confidential data and trade secret.

Trade secret is information and business correspondence relating to economic the activity of the company, or other valuable data, if it is known to a limited number of people, if their disclosure is detrimental to the person making them available or to third parties and if the interests of disclosure are data may be affected, objectively worthy of protection. In general, it could be said that disclosure of trade secrets to unauthorised persons outside the undertaking could cause significant economic damage to the undertaking.

Confidential information is trade secrets and personal data and any other data for which the ZPOmK 2 or other regulations lay down special regimes for their protection and special conditions for access to it. Information which is publicly available shall not be regarded as confidential information.

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