ZPOmK-2A[1] entered into force and became applicable on 24 February 2024.
The main changes and additions worth being highlighted are:
- additional competencies of the Slovenian Competition Protection Agency (“Agency”), in line with Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (“Regulation 2019/1150“)[2] and Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (“Regulation 2022/1925“)[3],
- amendments of the provisions on the acquisition and disclosure of confidential information,
- introduction of a time limitations for proposing corrective measures in merger clearance proceedings,
- the possibility for the Agency to take into account submission of a leniency application as a mitigating circumstance for a reduction of fines for responsible persons of the company,
- providing an explicit legal basis for the Agency to publish information regarding merger notification, and
- regulating the possibility of lodging a hypothetical leniency statement.
Below, we present in more detail all the novelties.
1. New competences of the Agency regarding the supervision over Regulation 2019/1150 and Regulation 2022/1925
1.1. Regulation 2019/1150
Online intermediation services are one of the main drivers of entrepreneurship and innovation in the modern economy. In the modern information society, they are rapidly becoming a part of consumer’s everyday lives. In order to contribute to the functioning of the internal market by laying down rules to ensure adequate transparency, fairness and effective remedies for business users of online brokerage services and for users with a business website in relation to search engines, the European Commission has adopted Regulation 2019/1150.
The amendment supplements the existing tasks and competencies of the Agency (Article 12 of ZPOmK-2), which is now also responsible for monitoring the implementation and administrative sanctioning of violations of Regulation 2019/1150 and decides as an offence authority on offences committed by responsible persons due to the violation of Regulation 2019/1150.
The process of implementing supervision over Regulation 2019/1150 is regulated by the new chapter 3.a (new Article 78a of ZPOmK-2). It defines the analogous application of provisions applicable in the procedure for restrictive practices.
In accordance with the new competences, the amendment ZPOmK-2A also regulates the sanctioning of providers of online intermediary services (Article 85(4) of the ZPOmK-2). In the event of a determined violation[4], the Agency can impose an administrative sanction in the form of a monetary penalty of up to 2% of their annual turnover in the previous business year.
1.2. Regulation 2022/1925 – Digital Markets Act
Regulation 2022/1925 establishes uniform rules for the regulation of digital markets at the EU level by setting standards for the creation of competitive, non-discriminatory, responsible, and fair digital markets. The purpose of Regulation 2022/1925 is to ensure competitiveness and fairness in digital markets, especially for business and end-users of core platform services.
The amended Article 12 of ZPOmK-2 imposes on the Agency the obligation to cooperate and coordinate with the European Commission regarding procedures under Regulation 2022/1925. Additionally, it grants the Agency additional powers – to investigate, on its own initiative, cases of potential non-compliance with Articles 5, 6, and 7 of Regulation 2022/1925 within the territory of the Republic of Slovenia. The mentioned articles specify the obligations of so-called gatekeepers.
2. Provisions relating to confidential information
The amendment significantly supplements the provisions regarding data disclosure.
Firstly, in accordance with the amended Article 37 of ZPOmK-2, the Agency may now disclose data to which it comes across while performing its tasks to the European Commission and competition protection authorities of EU member states also on the basis of procedures specified in Regulation 2019/1150 and Regulation 2022/1925.
Secondly, the amended Article 38 of ZPOmK-2 expressly allows the Agency to request data which is designated as confidential. Having a specific legal basis for obtaining confidential data is crucial for the Agency, as state authorities, local community authorities, holders of public authority, and other individuals and organizations will now be unable to refuse cooperation or deny access to (confidential) data by invoking data confidentiality.
In light of these changes, ZPOmK-2 also further regulates the right of parties to review the file. The amended Article 42(7) of ZPOmK-2 stipulates that the Agency must, when disclosing confidential data, act in accordance with Article 117(6) of ZPOmK-2, which otherwise governs the disclosure of data in cases of damage claims before the court. This solution provides the Agency with the option to choose among several methods of protecting confidential data, allowing a balance between the interests of safeguarding confidential data and the need to ensure the right to defence and protect other interests by selecting the least invasive measure through a weighing of interests.
3. Time limit for proposal of corrective measures
The applicant’s ability to propose corrective measures is now limited – it must propose them no later than 45 working days from the issuance of the decision initiating the so-called second phase of the merger review or the procedure of a more detailed appraisal of the its compliance with competition rules.[5]
Late proposals for corrective measures may be considered and accepted by the Agency only if, based on the available data, it can clearly conclude that the proposed corrective measures will completely and unambiguously address the identified competition concerns. This provision can significantly contribute to the expedited handling of cases.
The new Article 75(8) of ZPOmK-2 allows the Agency, in the event of a change in circumstances significant for the issuance of the decision, to modify the decision determining corrective measures if the change did not occur due to the actions of the notifying party.
4. Additional restrictions regarding the use of data from the settlement submission
In accordance with the amended Article 43 of ZPOmK-2, the access to the settlement submission is subject to even more restrictions. This further emphasizes the importance of protecting settlement submissions and encourages parties to take advantage of the opportunity to submit settlement submission.
5. Additional mitigating circumstances for the assessment of fines against responsible persons
In accordance with the amended Article 138 of ZPOmK-2, the law now explicitly mentions submission of leniency statement (subject to meeting certain conditions) may be taken into account as a mitigating circumstance in the assessment of the fine for responsible persons of the company.
6. Other changes
Further on, we summarize other changes that, while important, do not bring essential novelties.
6.1. Legal basis for the publication of information regarding merger notification
With the publication of the initiation of the procedure, third parties with a legal interest for participating in the procedure become acquainted with it. Based on this awareness and publication, individuals demonstrating a legal interest can join the procedure and provide any relevant information related to the concentration.
The amended Article 69 of ZPOmK-2 now explicitly includes a legal basis for the publication of data about the notified concentration.
In practice, the Agency has already been publishing data about the notified concentration on its website (the need for publication stemmed from the provision of Article 40(3) of ZPOmK-2). However, due to the lack of an explicit legal basis, the Agency previously required the consent of the notifying party. In light of the aforementioned amendment, consent will no longer be necessary.
6.2. Explicit legal basis for filing summary and hypothetical leniency applications within the leniency programme
The amendment ZPOmK-2A also covers the leniency programme, more explicitly the provision of Article 93 of ZPOmK-2, which regulates exemptions and reductions of administrative sanctions.
So far, the filing of summary leniency statement and a hypothetical leniency statement has been regulated only by the Decree on the procedure for granting immunity from, and reduction of, administrative sanctions for companies who are parties to cartels.[6] Due to the amendments, the possibility of filing a summary or hypothetical leniency statement is now expressly mentioned in Articles 93(5) and 93(6) of ZPOmK-2.
The new Article 93(7) of ZPOmK-2 addresses the situation when it is revealed that another company has already met the conditions for exemption from administrative sanctions or that the company does not meet the conditions for its exemption or reduction. The Agency informs the company in writing about the latter. In such a case, the undertaking can withdraw already disclosed evidence that it revealed for the purpose of its own leniency statement. Nevertheless, this does not prevent the Agency from obtaining such information and evidence of the violation on its own based on its investigative powers.
[1] Prevention of Restriction of Competition Act (in Slovenian: Zakon o spremembah in dopolnitvah Zakona o preprečevanju omejevanja konkurence; Official Gazette of the Republic of Slovenia, no. 12/2024 as amended, “ZPOmK-2A”).
[2] Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ L 186, »Regulation 2019/1150«).
[3] Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ L 265, »Regulation 2022/1925«).
[4] Article 85(4) of ZPOmK-2 lists 14 instances of violations, the intentional or negligent commission of which can be sanctioned by the Agency, namely: 1. if the provider of online intermediary services fails to write the terms of service in simple and understandable language or does not provide easy accessibility to business users at all stages of their business relationship; 2. if it does not inform business users of all proposed changes via a durable medium or implement proposed changes before the expiration of the notification period; 3. if, upon limiting or temporarily disabling the provision of online intermediary services to a specific business user, it does not provide an explanation of the reasons for such decision; 4. if, upon discontinuation of providing online intermediary services entirely to a specific business user, it does not provide an explanation of the reasons for such decision at least 30 days before the effectiveness of the discontinuation; 5. if it does not specify in the terms of service the main parameters for determining ranking and reasons for the relative importance of these main parameters compared to other parameters; 6. if it does not specify the main parameters that are individually or collectively most important for determining ranking, and the relative importance of these main parameters, providing an easy and publicly accessible description on the online search engines of the listed providers in simple and understandable language; 7. if it does not include in its terms of service a description of the type of ancillary goods and services offered, and a description of whether and under what conditions a business user can also offer their ancillary goods and services through the online intermediary service; 8. if it does not include a description of differentiated treatment in the terms of service; 9. if it introduces retroactive changes to the terms of service; 10. if it does not include information in the terms of service about the conditions under which business users can terminate contractual relationships; 11. if it does not include a description of technical and contractual access or its non-existence that business users have to any personal or other data or both; 12. if it does not include reasons for restricting the ability of business users to offer the same goods and services to consumers under different conditions in ways other than through the listed services, and does not ensure they are easily accessible to the public; 13. if it does not provide an internal system for handling complaints from business users; and 14. if it does not specify two or more mediators with whom it is willing to cooperate to attempt to reach an agreement with business users on alternative dispute resolution in its terms of service.
[5] This is the decision referred to in Article 70(4) of ZPOmK-2.
[6] Decree on the procedure for granting immunity from, and reduction of, administrative sanctions for companies who are parties to cartels (in Slovenian: Uredba o postopku odpustitve in znižanja administrativne sankcije podjetjem, ki so udeležena v kartelih; Official Gazette of the Republic of Slovenia, no. 157/22 as amended).
