PREVENTION OF RESTRICTION OF COMPETITION ACT (ZPOmK-2) AND KEY CHANGES

On 29 September 2022, the National Assembly of the Republic of Slovenia adopted the new Prevention of Restriction of Competition Act (“ZPOmK-2“), which transposes EU Directive 2019/1 into the Slovenian legal system. ZPOmK-2 entered into force on 26 October 2022, and will become fully applicable on 26 January 2023. The authority responsible for the protection of competition on the Slovenian market is the Agency of the Republic of Slovenia for the Protection of Competition (“Agency“). The following is a description of the main changes in relation to previous Competition Act (ZPOmK-1).

  1. Introduction of administrative sanctioning

In a single administrative procedure, the Agency will be able to simultaneously determine a violation of competition rules by an undertaking and impose an administrative sanction in the form of a one-off or periodic fine. The Institute of Administrative Sanctions is a novelty in Slovenian competition legislation, as the determination of violations of competition rules and the imposition of sanctions were conducted in two separate procedures until the adoption of ZPOmK-2.

  1. Use of information from leniency program

ZPOmK-2 regulates in more detail the permissibility of the use of information derived from leniency program. Such information may be used in proceedings before a court reviewing a decision of the Agency only where necessary for the exercise of the rights of defense in the proceedings before the court and only for the purposes of assessing the apportionment of an administrative sanction for which the cartel participants are jointly and severally liable, or for the purposes of assessing a decision by which the Agency has found an infringement of the competition rules or an offence under ZPOmK-2.

  1. Additional investigation powers of the Agency

The new law harmonizes the conditions for issuing an order to search premises and documents, including electronic devices. It introduces the possibility for the Agency to appeal against a court decision should the court disagree with the Agency’s proposal to order an investigation. The Agency may, before issuing a decision to initiate proceedings, collect information from undertakings, any representative or person employed by un undertaking or any natural person who may have information relevant to the object or purpose of the supervision.

  1. Possibility of waiving sanctions for responsible persons

Current and former responsible persons and other employees of an undertaking who have submitted a leniency statement in relation to their participation in a cartel may not be subject to criminal sanctions if the legal conditions for this are met and if the application for remission of the administrative sanction was submitted before the Agency’s responsible person was informed of the competition law infringement proceedings. The public prosecutor is not obliged to initiate a criminal prosecution or may waive a prosecution even if the contribution of a person to the detection and investigation of a cartel outweighs the interest in prosecution or sanction.

  1. International cooperation between competition authorities

Under ZPOmK-2, service of procedural documents to an undertaking having its registered office or assets in another EU Member State is conducted through a foreign competition authority or other public authority competent to enforce acts under national law in another Member State. For the enforcement of a final decision imposing an administrative sanction or a periodic administrative sanction on an undertaking which does not have sufficient funds in the Republic of Slovenia to pay the administrative sanction imposed, the Agency may request the assistance of the competition authority of another Member State or another public authority competent for the enforcement of acts under national law in another Member State. Furthermore, ZPOmK-2 also regulates the content of the requests, whereby no instruments of recognition, amendment or replacement are required for service or enforcement.

  1. Introduction of a simplified concentration notification procedure

ZPOmK-2 introduces a simplified concentration notification procedure. The institute allows the Agency to assess the compliance of a notified concentration with the competition rules under a simplified procedure. The Agency may apply this institute if the notified concentration does not appreciably impede competition on the market or if it is a concentration that is normally approved in practice.

The Agency may assess a concentration under the simplified procedure if one of the following conditions is met:

  • none of the undertakings concerned, together with the other undertakings in the group, is active in the same relevant product or service market and geographic market (horizontal overlap) or in a relevant product or service market which has a vertical relationship or is a closely related adjacent market to a relevant product or service market in which any other undertaking concerned is active;
  • the combined market share of all undertakings concerned by the concentration, together with the other undertakings in the group active in the same relevant product or service market (horizontal relationships), does not exceed 15 % under all plausible market definitions;
  • the individual or combined market share of the undertakings concerned, taken together with the other undertakings in the group active in the product or service market in which any other undertaking concerned operates in a vertical relationship (vertical relationships), does not exceed 25 % in any of the vertically related markets within all plausible market definitions;
  • the undertaking concerned acquires, together with the other undertakings in the group, sole control of an undertaking over which it already has joint control.
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