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Under what circumstances is a transaction caught by merger control legislation?
The Prevention of the Restriction of Competition Act 2008 covers all transactions that result in the acquisition of control, including:
- share capital increases; and
- full-function joint ventures.
This means that a transaction will be caught by the Slovenian merger regime when:
- two or more previously independent undertakings merge;
- one or more persons already controlling at least one undertaking, or one or more undertakings, acquire – whether by purchase of shares, securities or assets by contract or by any other means – direct or indirect control of the whole or parts of one or more undertakings; or
- two or more undertakings create a joint venture that performs the functions of an autonomous economic entity on a lasting basis.
Control is considered to be constituted by way of acquisition of rights, contracts or any other means which (separately or in combination, and having regard to the details of the facts or law involved) enable the possibility of exercising decisive influence over an undertaking.
Control often derives from an acquisition of the majority of voting rights (50% plus one share), but can also be established on a de jure basis (eg, a minority shareholding with special rights) or a de facto basis (ie, a majority at the shareholders’ meeting).
Do thresholds apply to determine when a transaction is caught by merger control legislation?
In order to identify whether a merger notification obligation exists, all transactions should be assessed with regard to the annual turnovers achieved by the companies involved in Slovenia. Further, special attention is required when the companies involved have a Slovenian market share that exceeds 60%, as the Competition Protection Agency may require notification even if the turnover thresholds are not met.
A concentration must be notified to the agency when the parties meet the following thresholds:
- The combined aggregate annual turnover of all undertakings concerned (including undertakings belonging to the same group) exceeded €35 million in the Slovenian market in the last business year;
- The annual turnover of the target (including undertakings belonging to the same group) exceeded €1 million in the Slovenian market in the last business year; or
- In the event of the creation of a joint venture, the annual turnover of at least two participating undertakings (including undertakings belonging to the same groups) exceeded €1 million in the Slovenian market in the last business year.
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