The obligation to notify a concentration arises if two conditions — legal and economic — are met at the same time.
a) The legal condition is met if there is a concentration within the meaning of Article 9(1) of ZPOmK-2, which means that there is a permanent (longer duration) change of control over a company resulting from:
- mergers of two or more previously independent undertakings or parts of undertakings; or
- the acquisition, directly or indirectly, of all or parts of one or more undertakings by one or more natural persons who already control at least one undertaking, or by one or more undertakings which acquire control by way of purchase of securities, property, contract or otherwise; or
- the creation by two or more independent undertakings (the ‘ Full-Function Joint Venture’) of a joint venture which performs all the functions of an autonomous undertaking of a longer duration.
A concentration occurs in any event of a permanent change in control of an enterprise or a part thereof, unless control is acquired by a natural person who does not control any other enterprise.
Control of an undertaking or part thereof means rights, contracts or other means which make it possible to exercise decisive influence over an undertaking or part of an undertaking, in particular ownership or rights to use all or part of the undertaking’s assets, and rights or contracts which confer a decisive influence on the composition, voting or decisions of the organs of the undertaking.
Control shall be acquired by persons or firms who:
- are holders of rights or are entitled to them under contracts; or
- they shall be able to exercise rights arising from contracts, even if they are not holders of rights or beneficiaries of them under contracts.
A concentration shall not be deemed to exist where banks, insurance undertakings, savings banks or other financial companies whose normal activities involve trading in securities on their own account or on behalf of others temporarily acquire shares in an undertaking with a view to reselling them, provided that they do not exercise the voting rights attaching to those shareholdings in order to influence the competitive behaviour of that undertaking, 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. There is no judicial protection against the decision.
b) The economic condition is defined in Article 66 ZPOmK-2 and is fulfilled if:
- the total annual turnover of (all) parties to the concentration, together with other undertakings in the group, in the preceding business year on the market of the Republic of Slovenia exceeded EUR 35 million and was at the same time
- the annual turnover of the acquired company together with other companies in the group in the preceding financial year on the market of the Republic of Slovenia exceeded EUR 1 million.
In the case of the establishment of a joint venture which performs all the functions of an independent enterprise with a longer duration, the economic condition is met if the annual turnover of at least two undertakings involved in the concentration together with other undertakings in the group in the preceding business year on the market of the Republic of Slovenia exceeded EUR 1 million.
Notwithstanding the thresholds set out in the first paragraph of Article 66 of the ZPOmK-2, a concentration does not have to be notified to the Agency if the European Commission in accordance with the EC Merger Regulation assesses it.
The Agency may also assess concentrations that do not meet the thresholds set out in the first paragraph of Article 66 if the undertakings involved in the concentration together with other undertakings in the group have a market share of more than 60 per cent on the relevant market in the Republic of Slovenia. In this case, the undertakings involved in the concentration must notify the Agency of such a concentration within 30 days of the conclusion of the contract, the announcement of the public offer or the acquisition of control. If it becomes aware of the concentration by other means, the Agency may itself invite the undertakings concerned in the concentration to notify it of the concentration. No later than 25 working days from the date on which the Agency received notification of the implementation of such a concentration, it may invite undertakings to notify the concentration.