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New Prevention of Restriction of Competition Act shall become applicable – what key changes should undertakings be aware of?

On 29 September 2022, the new Prevention of Restriction of Competition Act was adopted in Slovenia.

The new Prevention of Restriction of Competition Act (“ZPOmK-2”)[1], which (among others) transposes the EU Directive 2019/1[2](“ECN+ Directive”) into the Slovenian legal system, entered into force on 26 October 2022. It shall become applicable on 26 January 2023.

New ZPOmK-2 brings forward some significant regulatory changes to Slovenian competition enforcement landscape.

The most important changes introduced by the ZPOmK-2 are: (a) the introduction of a unified administrative procedure for establishing infringements and administrative sanctioning; (b) the introduction of a simplified concentration notification procedure, (c) increased investigation powers of the Competition Protection Agency, d) enhanced international cooperation between competition authorities, and e) changes in the area of leniency programme.

The key changes are outlined below.

Unified administrative procedure for establishing infringements and administrative sanctioning

Until now, Slovenia was one of the few EU Member States that had a two-phase procedure in place for competition law infringements. Under ZPOmK-1,[3] the Slovenian Competition Protection Agency (“CPA”) firstly had to establish an infringement in an administrative procedure and was only able to impose a fine in a separate minor offence procedure. Both procedures were subject to separate judicial appeals.

The new ZPOmK-2 abolished the aforementioned two-phase system and introduced a unified administrative procedure, which now combines the two phases. The CPA will now be able to establish the existence of the infringement of competition law and impose a fine upon the infringer in the course of the same procedure, by issuing just one decision.

The concept of administrative sanctioning, which was introduced by ZPOmK-2, is a novelty in Slovenian competition enforcement legislation and thus, a completely new concept of imposing sanctions had to be established.

The abolishment of the previous two-phase system, which has been criticised for some time,[4] is expected to reduce the administrative burden on the CPA as well as on the undertakings. Another envisioned benefit of the unified procedure is increased efficiency of the public competition law enforcement. Due to separate appeal procedures; the enforcement procedure was often lengthy and it was not uncommon that a significant amount of time passed between the CPA’s infringement and fining decision. As both phases are now combined, it is expected that the infringement cases will be closed sooner.

Even though the ECN+ Directive does not oblige the Member States to have a unified one-phase system, it does require them to ensure effective and uniform enforcement of Articles 101 and 102 of Treaty on the Functioning of the European Union (“TFEU”) and ensure that National Competition Authorities (“NCAs”) have the power to impose effective, proportionate and dissuasive fines. Since the new unified system is expected to increase the efficiency of the competition law enforcement, it is thus also in line with the main goal of the ECN+ Directive (i. e. to empower the competition authorities of the Member States to be more effective enforcers).

Notwithstanding this, open issues remain if administrative sanctioning ensures all the required procedural safeguards of a suspected infringer. We expect challenges of the CPA’s infringement decisions before the court due to alleged infringements of rights to a fair trial.

Simplified merger notification procedure

The former ZPOmK-1 only recognised one merger control procedure and did not legislate a simplified procedure regardless of the merger’s effects. Thus, filing for merger control clearance in Slovenia, even for the most unconcerning cases, took significant amount of time.

The new ZPOmK-2 introduced the long-awaited simplified merger control procedure for concentrations which have no or only have a minimal impact on effective competition on the relevant markets. Under the new ZPOmK-2, the CPA may assess the concentration under the simplified procedure in the following circumstances:

  • no overlap cases – where none of the undertakings concerned are active in the same product or geographical market or upstream or downstream of each other;
  • horizontal overlaps that do not exceed 15 % market share – where the undertakings concerned are active in the same relevant product or service market, but their combined market share does not exceed 15 %;
  • vertical overlaps that do not exceed 25% market share on each market – where undertakings concerned are active in a market upstream or downstream to each other but the market share of each does not exceed 25 %;
  • the undertaking concerned acquires, together with the other undertakings in the group, sole control of an undertaking over which it already has joint control.

However, even if the concentration falls under the one of the aforementioned criteria, the CPA must nevertheless carry out a full and detailed assessment of the concentration if certain special circumstances are present (inter alia, if some of the undertakings concerned are present in closely related markets; if relevant markets or market shares are difficult to define; if there are high barriers to entry or the market is highly concentrated; if, in case of a JV, there is a likelihood of coordination between the undertakings that remain independent; if the CPA receives substantiated competition concerns about the concentration from third parties, etc.).

The decision issued by the CPA in a simplified procedure shall contain information on the notified concentration (names of the parties and the relevant economic sectors in which the undertakings concerned are active), a finding as to whether the concentration is compatible with the competition rules, and an indication of the aforementioned conditions which are met for the adoption of a decision in a simplified procedure.

The simplified merger procedure, which is a reflection of the principle of procedural economy, is expected to become a useful part of the merger control regime as, if applied properly, has the potential to shorter the review timeframes for concentrations that do not raise significant competition concerns. It also has the potential to reduce costs for the parties to the concentration. Furthermore, it eliminates administrative burdens for the CPA as well as the parties. For this reason, the introduction of this procedure is not only welcomed by undertakings, but also by the CPA,[5] as it seems that there has been a slight uprise of the notified concentrations in the past few years.

Increased investigation power of the CPA

Under ZPOmK-1, the CPA’s powers to investigate undertakings prior to formal initiation of infringement proceedings were relatively limited. The CPA only had the power to carry out an inspection of an undertaking if it was already subject to the infringement proceeding.

ZPOmK-2 now gives the CPA the option to conduct an inspection even before adopting a decision to initiate infringement proceedings. This means that the procedural decision on the initiation of an infringement procedure will not have to be served before or on the dawn raid date. This may allow the CPA to react to potential infringements and gather evidence more quickly. A court warrant allowing the CPA to carry out inspection however is still required and the CPA shall serve it to a company prior to initiating an inspection. However, the new ZPOmK-2 now allows the CPA to file for an appeal in case if its request for a court warrant to conduct an inspection is initially denied.

In addition to the CPA’s option to conduct an inspection of the premises, land, means of transport, business documentation and records, including electronic devices and electronic data carriers, and to issue requests for information, the new ZPOmK-2 also regulates the CPA’s power to  invite representatives of undertakings or other natural persons who may have information relevant to the subject or the purpose of the supervision to provide oral explanations of facts and documents relating to the subject of the scrutiny even before adopting a decision to initiate infringement proceedings. This new stand-alone investigation tool is the result of transposing the ECN+ Directive as its Article 9 expressly requires the Member States to ensure that NCAs are empowered to summon representatives of the undertakings to appear for an interview.

It is going to be interesting to observe to what extent will the CPA use its newly expanded investigative powers.

Provisions regarding international cooperation between competition authorities

As noted, ZPOmK-2 transposed the ECN+ Directive, and by that, it implemented its key solutions regarding cooperation on service and enforcement of documents of NCAs into Slovenian law.

If the undertaking against which the CPA has initiated a procedure does not have its registered office in Slovenia, the CPA may request the NCA of the Member State in which the undertaking has its registered office to serve certain procedural documents. The CPA may also request the assistance regarding enforcement of final decision imposing an administrative sanction on an undertaking which does not have sufficient funds in Slovenia to pay the fine which was imposed.

It is important to note that no instruments of recognition, amendment or replacement are required for service of documents or enforcement of decisions.

It is expected that the aforementioned changes will facilitate the enforcement of the CPA’s decisions.

Changes in regards to leniency programme

The key changes in regards to the leniency programme that ZPOmK-2 brings forth are: (1) possibility of remission of a sanction to a natural person and (2) limited use of the information contained in the leniency statement (and the settlement application) in court proceedings.

Under the new ZPOmK-2, current and former responsible persons and other employees of an undertaking who submitted a leniency statement in relation to their participation in a cartel, may not be subject to sanctions in criminal proceedings, provided that (i) the conditions for remission or reduction of the undertaking’s sanctions are met, (ii) they have actively cooperated with the CPA and (iii) the undertaking’s application for remission of the administrative sanction was submitted before the CPA informed those persons of the competition law infringement proceedings. Even if the above conditions are not met, the public prosecutor is not obliged to initiate a prosecution or may propose remission or reduction of a criminal sanction or decide to not prosecute if the contribution of the natural person to the detection and investigation of the cartel outweighs the interest in prosecution or sanctioning.

Furthermore, use of and access to information from leniency statements is now regulated more thoroughly. The information from leniency statements may be used in court proceedings when the court reviews the CPA’s decision, however only if that is necessary for ensuring the party can exercise its right of defence and only for the purpose of assessing distribution of an administrative sanction for which the cartel participants are jointly and severally liable or for the purpose of assessing a decision by which the Agency has found an infringement of ZPOmK-2 or Articles 101 or 102 TFEU. The aforementioned changes are all in line with the requirements set out by Article 31 of the ECN+ Directive.


The new ZPOmK-2 introduces some very significant regulatory changes to Slovenian competition enforcement landscape and brings forward some major advances for the Slovenian CPA. The changes are expected to enhance its role as an effective enforcer of competition law as it now has even more (powerful) tools for investigating and enforcing competition law in its arsenal. Especially the introduction of the administrative sanctioning, which has been long-awaited by the CPA, is expected to significantly affect the alleged infringers of competition law as, in practice, the threat of sanctions seems more imminent.

We shall keep a close eye on the practical implications of the regulatory changes and their effect on competition law enforcement and policy.


[1]      Prevention of Restriction of Competition Act (in Slovenian: Zakon o preprečevanju omejevanja konkurence; Official Gazette of the Republic of Slovenia, no. 130/22 as amended, “ZPOmK-2“).
[2]      DIRECTIVE (EU) 2019/1 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market
[3]      Prevention of Restriction of Competition Act (in Slovenian: Zakon o preprečevanju omejevanja konkurence; Official Gazette of the Republic of Slovenia, no. 36/08 as amended, “ZPOmK-1“).
[4]      Among others, it was also cirticised by the CPA in its Opinion on the draft proposal of the ZPOmK-2 dated 4. 3. 2020, available in Slovene here.  
[5]      The CPA expressed its support regarding the simplified procedure in its Opinion on the draft proposal of the ZPOmK-2 dated 4. 3. 2020, available in Slovene here.