Key new features of the Prevention of Restriction of Competition Act - ZPOmK-2

14 February 2023

On 26 January 2023, the new Act on the Prevention of Restriction of Competition started to apply, after it entered into force in October 2022. It replaced the previous Act ZPOmK-1 from 2008 and brought an upgrade of some provisions to the Slovenian legal system, in accordance with 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.

Below is a summary of some of the features of the new Act:

Uniform administrative procedure for determining violations of the rules of competition law and administrative sanctioning of companies
Slovenian Competition Protection Agency (hereinafter: the Agency), which is the body responsible for the protection of competition on the Slovenian market, conducted two procedures for this purpose until the implementation of ZPOmK-2, namely the administrative one, in which it established the existence of a violation, and an infringement procedure, in which it imposed a fine. Now the law provides a uniform administrative procedure.

Administrative sanctioning of companies
Article 79 of the new Act defines an administrative offense as an act of a company that violates the Act or Article 101 or 102 of the Treaty on the Functioning of the European Union (hereinafter: TFEU) and is defined by the Act as an administrative offense, and is subject to an administrative sanction, which is imposed in the form of a lump sum or a periodic payment.
The maximum permissible sanction for an established violation is an amount equal to 10 percent of the company's annual turnover in the previous financial year. Article 93 sets out the conditions for a possible dismissal or reduction of an administrative sanction, while Article 95 brings the possibility of a reduction of an administrative sanction (by a maximum of 20 percent) based on an application for settlement. The new Act also introduced new rules in the area of limitation periods, as a five-year limitation period is now set for serious competition law infringements and a three-year limitation period for minor infringements.

Simplified notification of concentration procedure
In accordance with the principle of economy, the Act contains a new simplified procedure in which the Agency (under the conditions of Article 78) will be able to assess individual concentrations in a simplified procedure, which should eliminate certain administrative and cost burdens.

The Agency's investigatory powers
Pursuant to Article 52(1), the Agency now has the possibility, before issuing a decision to initiate proceedings, to address a request to each company, its shareholders, members of the management or supervisory bodies, persons employed by the undertaking and other persons for the provision of any information which may be relevant for the application of the new Act or of Articles 101 and 102 TFEU. The new Act has also harmonized the conditions for issuing an order for the search of premises and documents. It is also possible to search electronic devices. If a judge disagrees with the proposed search by the Agency, the latter has the option of appealing to the District Court in Ljubljana.

Use of information from the leniency statement
A leniency statement is an oral or written submission made voluntarily by a company or an authorized person to the authority, in which the company or authorized person provides information about the cartel and describes his or her role in it. The statement must be prepared specifically for the Agency with the purpose of waiving or reducing the monetary sanction within the framework of the leniency program. In Article 43, the new Act now further regulates the restrictions on the use of information from statements and stipulates that only the parties in the proceedings and only for the purpose of exercising their rights of defence may have access to the leniency statement. A party may use information from a leniency statement or a settlement application in proceedings before a court reviewing a decision of the Agency only where this is necessary for the exercise of its rights of defence and only for the purposes of assessing the distribution of the administrative sanction for the payment of 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 this Act or of Article 101 or 102 TFEU.