I Introduction

The statutory provision dealing with the behaviour of dominant firms is Article 9 (Prohibition of the Abuse of a Dominant Position) of the Slovenian Prevention of the Restriction of Competition Act (PRCA),2 which entered into force on 26 April 2008. Its main wording corresponds to Article 102(1) of the Treaty on the Functioning of the European Union (TFEU) and provides that ‘the abuse of a dominant position in the market by one or more undertakings in the territory of the Republic of Slovenia or in a substantial part of it shall be prohibited’. Article 9(4) of the PRCA also lists the same examples of infringements as Article 102(2) of the TFEU.

The Competition Protection Agency (CPA) is an independent administrative authority with powers to investigate abuse of dominance cases (in administrative proceedings) and impose fines of up to 10 per cent of the infringing companies’ worldwide turnover (in minor offence proceedings). The CPA has not adopted formal guidance on the way in which it applies Article 9 of the PRCA; nor has it adopted guidelines on the setting of fines for breaches of Slovenian antitrust law. Therefore, guidance on the application of the current rules can be gathered mostly from case law of the CPA and the Slovenian courts. The European Commission’s guidance on Article 102 of the TFEU, as well as European Commission’s and European courts’ decisional practice, also provide useful information for the application of Article 9.

Article 9 of the PRCA applies to undertakings. The PRCA defines the concept of ‘undertaking’ as any entity that is engaged in economic activities, regardless of its legal and organisational form and ownership status. An ‘economic activity’ means any activity that is performed on the market for payment. Accordingly, state-owned enterprises, public entities and other legal entities subject to public law and performing economic activities are also subject to the PRCA. An undertaking also means an association of undertakings that is not directly engaged in an economic activity but that affects or may affect the behaviour in the market of undertakings as defined above.

Under Slovenian competition law in the PRCA, no sectoral exemptions exist in terms of dominance. Article 9 of the PRCA applies to all undertakings, irrespective of the industry sector to which they belong.

II Year in Review

In 2017, some important amendments to the PRCA in relation to the private enforcement of antitrust rules (see Sections VII and VIII) have been adopted.

As regards administrative proceedings, in 2017 the CPA initiated two new cases in the area of abuse of dominance, at least according to publicly disclosed information. In January 2017, the CPA initiated proceedings against Pro Plus regarding alleged abuse of its dominant position in the national wholesale market for TV programmes, and in July 2017 against Renault Nissan Slovenija for allegedly abusing its dominant position in the national market for the provision of technical information and technical training needed by (authorised and independent) service shops of Renault motor vehicles.

The CPA adopted no prohibition decisions in abuse of dominance cases in 2017, but it succeeded to close one case (Geoplin) related to the market for gas supply by accepting commitments.3

Some other older cases are still open on which the CPA must take a decision. The IKO case was initiated in 2015 against IKO, the supplier of TV channels with sports content in Slovenia, for alleged abuse of its dominant position with regard to limiting and hindering access to sport TV channels by retail TV operators. A second case was opened in August 2016 and relates to e-commerce, where Panteon Group, a provider of services of inter-organisational business operations, allegedly refused access to certain electronic data exchange systems held by providers of electronic data exchange services and their users. There are still some pending cases that the courts have referred back to the CPA for re-examination. The first case, Mobitel/Telekom Slovenije (Itak Džabest),4 relates to the telecoms sector with the alleged infringement of Article 9 and Article 102 of the TFEU in the retail mobile market. The second, Telekom Slovenije (ISDN/ADSL),5 also concerns the Slovenian national telecommunication incumbent, whose customers were forced to lease integrated services digital network (ISDN) connections to purchase asymmetric digital subscriber line (ADSL) broadband internet access, although they did not need it and it was not technically necessary.

As regards court reviews, the last relevant decision was adopted recently in 2018 when the Administrative Court6 almost entirely upheld the CPA decision in another Telekom Slovenije (2015) case7 where the CPA held that the incumbent operator, Telekom Slovenije, abused its dominant position on the wholesale markets for broadband bit-stream access and for access to physical network infrastructure by various individual conducts that jointly represent a single and continuous infringement of Article 102 of the TFEU and its equivalent in the PRCA.

Sector

Investigating authority

Type of case

Decision

Energy

CPA

Concluding long-term contracts with industrial customers connected to the transmission network, which included contracted quantities of gas to be taken over the whole contract period as well as the obligation to take delivery of minimum quantities

Commitment decision: November 2017

Sector

Investigating authority

Conduct

Case opened*

Sale of cars and light motor vehicles

CPA

Restriction of access to technical information to independent car repair shops

July 2017

Distribution of audiovisual content

CPA

Making supply of popular pay TV channels to retail TV operators conditional on the inclusion of all the provider’s TV channels in a prime position in the entire operator’s programme scheme; offering popular TV channels exclusively in packages, including must-have TV channels, that are four times more expensive than they were in the period before the price increase; and different price treatment of retail TV operators purchasing the TV channels

January 2017

Electronic commerce

CPA

Refusing access to certain electronic data exchange systems held by providers of electronic data exchange services and their users

August 2016

Media – TV channels

CPA

Limiting and hindering access to sport TV channels by retail TV operators

February 2015

Telecommunications

CPA

Various conducts raising the entry costs and risks of the alternative operators that would enter the retail market using wholesale services, including less favourable conditions for alternative operators in comparison to Telekom’s own downstream business and refusal to give access to essential infrastructure

September 2008, February 2009, April 2009, August 2010, March 2013

Telecommunications

CPA

Predatory pricing (the ‘Itak Džabest’ retail package for mobile users)

March 2009

Telecommunications

CPA

Making ADSL connections for internet providers conditional on the prior leasing of ISDN connections by end-users, although an ISDN connection was not needed or technically necessary

October 2004

* ‘Case opened’ refers to the date on or month in which the authority opened its investigation (where known) or announced that it had opened an investigation

III Market Definition and Market Power

Article 9(2) of the PRCA defines ‘a dominant position’ as a position of an undertaking or several undertakings when they can, to a significant degree, act independently of competitors, clients or consumers. Such an approach follows the case law of the European courts.

The basic definition of a ‘relevant market’ is provided in Article 3 of the PRCA, which also reflects EU competition legislation and case law, and is the same as the one used for merger control purposes. A ‘relevant market’ means a market defined by the relevant product or service market and the relevant geographical market. The ‘relevant product or service market’ represents a market that, as a rule, comprises all products or services that are regarded as interchangeable or substitutable by the consumer or user given their characteristics, their prices or their intended use. In turn, ‘relevant geographic market’ is defined as a market that, as a rule, comprises an area in which competitors in the relevant product or service market compete in the sale or purchase of products or services, and an area in which the conditions of competition are sufficiently homogeneous and that can be distinguished from neighbouring areas because the competition conditions are substantially different. In determining the dominant position, the CPA takes into consideration, in particular:

  1. the market share;
  2. financial options;
  3. legal or actual entry barriers;
  4. access to suppliers or the market; and
  5. existing or potential competition.

Article 9(5) of the PRCA defines the market-share threshold for dominance as follows: ‘An undertaking shall be deemed to have a dominant position on the market if its market-share within the market of the Republic of Slovenia exceeds a threshold of 40 per cent.’

Even though the market-share threshold creates a legal presumption, such a presumption may be rebutted, since market share is an important, although not crucial, indicator of dominance.

Article 9 covers collective dominance, although there are no details on the assessment of collective dominance prescribed in the PRCA except for its presumption when the collective market share reaches a threshold of 60 per cent on the relevant market.

Although economics play a key role in the application of the dominance provisions, there are only a few cases where economic expert witnesses as external experts have been used in proceedings before the CPA; the analytical procedure is mostly performed by CPA employees who have knowledge of economics. Nevertheless, economic analysis is becoming a crucial part of more complex dominance cases. Court reviews of the CPA’s administrative decisions in the abuse of the dominant position cases show that the CPA will have to strengthen its economic analysis. In the Mobitel (Itak Džabest) telecoms case, the Supreme Court (2013)8 annulled the CPA’s infringement decision since the CPA, inter alia, failed to establish and transparently present all the relevant elements on which its cost–price analysis was based. Moreover, in Geoplin (2015), the Administrative Court9 held that the CPA, inter alia, failed to carry out an economic analysis of factors that are necessary for defining the relevant market, and returned the case to the CPA for re-evaluation.

IV Abuse

i Overview

Similar to EU competition law, abuse of a dominant position as such is not defined by the PRCA. The PRCA generally prohibits the abuse of a dominant position, and lists four typical examples of abusive behaviour:

  1. directly or indirectly imposing unfair purchase or selling prices, or other unfair trading conditions;
  2. limiting production, markets or technical development to the prejudice of consumers;
  3. applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; and
  4. making the conclusion of contracts subject to acceptance of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of their contracts.

The CPA’s case law is generally aligned with that of the EU, and it shows that abuse is still defined more in terms of the form of conduct, rather than in relation to the effects of specific conduct in the market and on consumers. It follows from the above list that the concept of abuse covers exploitative as well as exclusionary practices. An example of exploitative abuse of dominant position as set out by the PRCA is unfair pricing or trading conditions. Examples of exclusionary abuse of dominant position as set out by the PRCA include predatory pricing, discrimination, refusal to deal and tying. It must be noted that the list of forms of abuse in Article 9 is not exhaustive, so the CPA is not excluded from dealing with other types of abusive practices.

Similar to the EU competition law, there is no direct causality between the creation of a dominant position and its abuse under Slovenian competition law. To apply Article 9, the existence of a dominant position must first be established, but simply having a dominant position is not per se illegal. Although in most cases a causal link between dominance and abuse is obvious, an abuse may exist even if there is no causal link between the dominant position and the inspected conduct. Further, it is also possible that abusive conduct can take place in a market other than the market where the dominant position is established.

If abuse of a dominant position is established, it must be prohibited with no explicit exemptions. The PRCA does not provide an efficiency defence. Nevertheless, while the existence of the efficiency defence under Slovenian law has never been confirmed by the CPA, it is expected that its future case law will follow that of the EU. So far, the most common defence used by dominant undertakings has been that their conduct has been justified on objective grounds. In such cases, the CPA must assess whether the dominant undertaking has provided all necessary evidence to show that the conduct is indispensable and proportionate to the goal pursued by the undertaking.

ii Exclusionary abuses
Exclusionary pricing

In 2012, the CPA issued its decision in Mobitel/Telekom Slovenije (Itak Džabest), finding that Telekom Slovenije (previously Mobitel) had been abusing its dominant position in the retail mobile telecommunications service market by offering the ‘Itak Džabest’ retail package to mobile phone users at unfair prices. The CPA established that Telekom Slovenije acted in a predatory manner by imposing its ‘Itak Džabest’ package at below-cost prices (lower than the costs incurred). With such prices, Telekom Slovenije gained new users and made it more difficult for other equally efficient competitors to gain new users and not suffer losses by doing so. The Supreme Court did not confirm the CPA’s decision, and returned the case to the CPA, which has reopened the administrative proceedings. The Court considered, inter alia, that the CPA failed to give reasons for the method that was used to calculate the incremental costs, and explicitly stated that a transparent calculation of negative margin per subscriber is crucial in cases such as this one where there is no clear and direct evidence of a ‘predation strategy’.

While accepting that the cost-price analysis is an element in deciding whether a price is predatory, the Supreme Court noted that also relevant is the effect of the introduction and sale of the contested package, which was likely to be the elimination of competitors, which (in the long run) harms consumers.

Price squeezes are not specifically mentioned in Article 9(4) of the PRCA. In principle, the CPA tends to follow the practice as developed under the Article 102 of the TFEU. The CPA dealt with an alleged abuse of dominant position by price squeeze in Mobitel/Telekom Slovenije (Itak Džabest) (2012) and Telekom Slovenije (2015). In both cases, the CPA ultimately decided to drop the price-squeeze part of the complaint, and ended the proceedings against Telekom Slovenije at the part regarding the possibility of creating margin-squeeze policy.

Exclusive dealing

Generally, rebates and discounts of dominant undertakings in exchange for ensuring business with customers are considered abuses of a dominant position. The CPA dealt with loyalty rebates in Pro Plus (2013).10 It established that a leading broadcasting and internet media company in Slovenia that is part of the multinational enterprise CME had abused its dominant position in the market for television advertising airtime by concluding exclusive dealing arrangements with advertisers, granting conditional rebates with loyalty-inducing effects and, in particular, granting high levels of discount as a reward for exclusivity. Concluding exclusive dealing arrangements with advertisers was also considered an abusive behaviour in Pro Plus. In particular, the CPA concluded that Pro Plus abused its dominant position by requiring individual advertisers to devote their advertising budgets exclusively to Pro Plus in return for granting rebates.

In the Gasilska oprema case (2010),11 the CPA established that Gasilska oprema, a wholesale company for fire extinguishers and related equipment, had a dominant position in the upstream market for the sale of new fire extinguishers. Although Gasilska oprema was not directly involved in after-sales services and maintenance of the fire extinguishers, the CPA held that it was indirectly present in the downstream market through its right to conclude contracts for after-sales services and maintenance of fire extinguishers with the trademark Pastor. The CPA decided that Gasilska oprema abused its dominant position by terminating the contract for after-sale services of Pastor-branded fire extinguishers concluded between the complainant and Gasilska oprema when the complainant obtained an authorisation to maintain a competitor’s fire extinguishers, as well as maintaining the contracts in force for the maintenance of the Pastor fire extinguishers, which were subject to abstention from selling competitors’ fire extinguishers and maintaining competing brands.

Leveraging

Article 9 of the PRCA prohibits ‘making the conclusion of contracts subject to acceptance of supplementary obligations that, by their nature or according to commercial usage, have no connection with the subject of their contracts’. In a renewed case, Telekom Slovenije (ADSL/ISDN) (2013), establishing potential abuse of a dominant position regarding ISDN and ADSL tying, the CPA concluded that Telekom Slovenije had abused its dominant position on the inter-operator broadband access market with bit-streaming via the copper-based network in Slovenia by making ADSL connections for internet providers conditional on the prior leasing of ISDN connections by end-users, although an ISDN connection was not needed or technically necessary.12

In Geoplin (2015),13 the CPA held that Geoplin abused its dominant position in the market of gas supply to large industrial customers through prohibited contractual clauses that caused industrial customers connected to the transmission network to be entirely tied to Geoplin. Following the re-examination of the case in the resumed procedure, the CPA finally accepted the proposed commitments in 2017.

Refusal to deal

An example of refusal to deal by a dominant undertaking without objectively justified reasons is Luka Koper (2009). An operator of the seaport of Koper refused, without justification, to allow its competitor access to the port, making it impossible for the competitor to perform towing and mooring activities. The CPA concluded that Luka Koper abused its dominant position by refusing such access, and doing so had the effect of excluding all competition on the markets for towing and mooring services in the port of Koper.

In the past, the CPA has dealt with cases of refusal to deal, and refusal of access to essential facilities as a similar form of abuse as refusal to deal, mainly in the telecommunications sector. In the recent case of abuse of a dominant position by Telekom Slovenije (2015), the CPA held that on the market for access to the physical network infrastructure, Telekom refused alternative operators access to key infrastructure necessary for the equivalent operation in the retail market for fixed broadband services. It refused access to the optical local loop even in locations where copper loops were not available and it did not allow alternative operators to offer broadband bitstream access services to third-party operators on its unbundled local loops.

iii Discrimination

Both price and non-price discrimination are included in the exemplary list of Article 9(4), and are described as ‘applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage’. So far, the most frequently investigated types of abuse have been price and non-price discrimination.

For example, in SAZAS (2011),14 the CPA established that SAZAS, a Slovenian collective authors’ society, had established a non-transparent system that favoured certain authors, especially those who were included in the decision-making process concerning distribution of collected royalties, which led to discrimination among authors.

In SODO (2012),15 the CPA found that SODO, the electricity distribution system operator in Slovenia, had abused its dominant position in the market for the management of the electric energy distribution network by charging only some electric power producers for excessive electric energy received, thus applying discriminative conditions on undertakings.

In a recent case of abuse of dominant position by Telekom Slovenije (2015), the CPA also concluded that, as concerns bitstream access, Telekom abused its dominance by not providing the wholesale ‘naked xDSL’ service to alternative operators, thereby preventing them from providing the xDSL service without the underlying telephone subscription to final customers. The CPA held that Telekom Slovenije, in the case of the provision of services to operators, applied dissimilar conditions to equivalent transactions, and placed alternative operators at a competitive disadvantage compared to Telekom’s retail division.

iv Exploitative abuses

Exploitative prices or terms of supply are included in the list of Article 9(4) as examples of ‘directly or indirectly imposing unfair purchase or selling prices, or other unfair trading conditions’. The CPA has not yet decided on any relevant excessive pricing case in practice.

In the recent court judgment in Telekom Slovenije (2015),16 the Administrative Court held that certain allegations in the CPA’s decision amounted to exploitative abuse. These allegations concerned, in particular, the CPA’s claim that Telekom Slovenije:

  • a made the provision of certain services conditional on use of its telephone connection, even though final users did not need it and it was not technically necessary, which in the view of the CPA represented a limitation on technical development to the prejudice of consumers; and
  • b made the conclusion of contracts subject to the acceptance of supplementary obligations that, by their nature or according to commercial usage have no connection with the subject of their contracts.

The Administrative Court considered that when assessing the existence of consumer harm in the context of exploitative abuse, it is necessary to determine what may constitute consumer harm, and that the CPA failed to demonstrate this. However, this does not apply to cases of exclusionary abuses where, according to the Administrative Court, the CPA is not obliged to determine specific consumer harm, to quantify the harm, or both.

V Remedies and Sanctions

Article 9 expressly prohibits abusive practices and is directly applicable. The CPA may issue a decision establishing the existence of an infringement of Article 9 of the PRCA or Article 102 of the TFEU, or both, and require the undertaking concerned to bring such an infringement to an end. The CPA may, in addition, impose on the undertaking the obligation to take reasonable measures to bring an infringement and its consequences to an end (behavioural or structural remedies). When there is a possibility of infringement of Article 9 of the PRCA or Article 102 of the TFEU, or both, and in cases of urgency owing to the risk of serious and irreparable damage to the effectiveness of competition on the market, the CPA may impose interim measures. In the case of a breach of Article 9 of the PRCA or Article 102 of the TFEU, or both, the CPA is entitled to impose fines.17 In Slovenia, the leniency programme does not apply to undertakings involved in abuse of dominance cases.

i Sanctions

In the case of a breach of Article 9 of the PRCA or Article 102 of the TFEU, or both, the CPA may, under Article 73 of the PRCA, impose a minor offence fine on a legal entity, entrepreneur or individual who performs an economic activity, of up to 10 per cent of its annual turnover in the preceding business year. A fine of between €5,000 and €30,000 can also be imposed on the responsible person within a legal entity or on an entrepreneur.

Under the Minor Offences Act, legal entities cannot be held solely responsible for offences, as the CPA needs to identify one or more individuals (offenders) who have committed the infringement, and then attribute their behaviour to the legal entity they represented and impose a fine on that entity. In Slovenian legislation, detailed guidelines on the method of setting fines in competition cases do not exist. When setting a fine, the CPA takes into account the provisions of the Minor Offences Act and, thus, all circumstances that may reduce or increase the sanction (mitigating and aggravating circumstances), such as:

  1. the level of the perpetrator’s liability for a minor offence;
  2. the motives for committing it;
  3. the level of threat or violation of a protected good;
  4. the circumstances in which the minor offence was committed;
  5. the perpetrator’s previous conduct;
  6. the perpetrator’s personal circumstances; and
  7. the perpetrator’s conduct after the minor offence was committed: in particular, whether he or she compensated for the damage.

The calculation of a fine imposed on a legal person or individual sole trader will take into account their economic strength and any previously imposed sanctions. When imposing a fine on the responsible person of a legal entity or entrepreneur, the calculation of the fine will also take into account the perpetrator’s financial conditions, salary, other incomes, and property and family duties.

The Slovenian case law on imposing fines in abuse of dominance cases is still limited to a few cases that were concluded with the force of res judicata. The CPA’s case law shows that it also takes into account the nature and gravity of the infringement, the market power of the undertaking, effects on the market, the geographical scope of the infringement and the duration of the infringement.

In addition, fines at the same level as for breaches of Article 9 of the PRCA or Article 102 of the TFEU, or both, can be imposed for failure to abide by imposed remedies, interim measures or commitment decisions.

ii Remedies

The CPA can also impose behavioural or structural remedies on an undertaking. According to Article 37 of the PRCA, the CPA may impose the obligation to take reasonable measures to bring an infringement and its consequences to an end on the undertaking, in particular through the disposal of the business or part of the undertaking’s business, by:

  1. division of an undertaking or disposal of shares in undertakings;
  2. the transfer of industrial property rights and other rights;
  3. conclusion of its licence and other contracts that may be concluded in the course of operations between undertakings; or
  4. ensuring access to infrastructure.

VI Procedure

The CPA has the power to enforce Article 9 of the PRCA and also Article 102 of the TFEU. The CPA conducts two types of proceedings: administrative proceedings, in which infringements of Article 9 of the PRCA and Article 102 of the TFEU are assessed and brought to an end, and minor offence proceedings, in which fines are levied.

Proceedings before the CPA are initiated only on the basis of information obtained by third parties (i.e., competitors or other market participants, public authorities or consumers) or information gathered by the CPA itself.

The CPA has extensive investigatory powers with regard to discovering abuses of a dominant position. It can issue requests for information and carry out inspections not only at the premises of undertakings against which a procedure has been initiated, but also at private residences.

An inspection of the premises of an undertaking against which a procedure has been initiated must be based on the consent of the undertaking or a reasoned written court order. If the latter is the case, the inspection must be carried out in the presence of two adults.

When conducting an inspection, authorised persons may enter and inspect the premises at the registered office of the undertaking and at other locations at which the undertaking itself or another authorised undertaking performs the activity and business for which there is the probability of an infringement of Article 9 of the PRCA or Article 102 of the TFEU. They may examine accounts and other documentation, irrespective of the medium on which they are stored. The authorised persons may ask any representative or member of staff of the undertaking to give an oral or written explanation of facts or documents relating to the subject matter and the purpose of the inspection, and then record it.

Subject to certain conditions,18 the CPA may also search the premises of an undertaking against which a procedure has not been initiated, and residential premises of members of

the management or supervisory bodies or of the staff or other associates of the undertaking against which the procedure has been initiated.

Therefore, it is important that undertakings subject to investigations by the CPA, especially in the event of a dawn raid, are assisted by legal counsel as soon as possible. The CPA is not obliged to wait for the arrival of a lawyer, and is entitled to start an inspection without his or her presence.

The legal representatives and employees of the undertaking are obliged to cooperate with the authorised persons of the CPA. If the undertaking refuses to permit an authorised person entry to the premises, interferes with the person’s entry, denies access to accounts or other documentation, or obstructs or otherwise interferes with an inspection, the authorised persons have the right to enter the premises or to access such accounts and other documentation with the assistance of the police.

It is also important that undertakings give clear instructions to their employees not to destroy any documents or electronic data, or communicate with other undertakings about the inspection; otherwise, the undertaking risks incurring the penalty for obstruction. In the case of the obstruction of an inspection, the CPA may impose a penalty payment amounting to 1 per cent of an undertaking’s annual turnover in the preceding business year; or, if it is deemed that the inspection has not been obstructed by the undertaking, a penalty payment amounting to €50,000 on an obstructing natural person.

An undertaking will be deemed as obstructing an inspection if the inspection is obstructed by members of its management or supervisory bodies, its employees or even by its external contractors.

Letters, notifications and other means of communication between the undertaking, against which the procedure has been initiated, and its lawyer (privileged communications), are excluded from inspection to the extent that such communications pertain to the procedure in question. An undertaking or its lawyer may refuse to allow access to information, claiming it to be privileged communication. If an authorised person considers that such claim is evidently unfounded, the authorised person may seal the document (or its copy) in an envelope signed by both the undertaking and its lawyer and send it to the Administrative Court of the Republic of Slovenia. The Court then decides on the justification of the claim for privileged communication within 15 days of the date of the request being filed by the CPA.

It is also advisable to form a team of employees who accompany and communicate with the authorised persons at the beginning of the inspection. Although the CPA usually obtains copies of the original documents, it is crucial to make copies of all documents taken by the CPA in order to prepare an effective defence.

A formal investigation of a specific case should last no more than two years after the order for commencement of a procedure, and the CPA should adopt a decision in that time. However, in practice there are no legal consequences if the CPA adopts its decision later. The CPA normally comes to a decision without an oral hearing. The CPA official conducting the procedure determines whether an oral hearing needs to take place to clarify or establish essential facts.

In administrative proceedings, the CPA can, after investigation:

  1. issue a decision establishing the existence of an infringement of Article 9 of the PRCA or Article 102 of the TFEU, and require the undertaking concerned to bring such an infringement to an end;
  2. issue a decision making binding commitments proposed by the undertaking against which the procedure has been initiated; or
  3. terminate the proceedings.

A judicial protection procedure may be initiated against decisions adopted by the CPA in administrative proceedings. The parties may bring an action before the Administrative Court within 30 days of service of the decision.

VII Private Enforcement

Affected parties (companies or consumers) can enforce Article 9 before the national courts, although they do not have competence to prohibit abusive practices.

The PRCA provides that a person who has suffered harm caused by an infringement of competition law has the right to compensation for harm under the general rules of the law governing contractual obligations, unless otherwise provided by the PRCA. Since the adoption of amendments in 2017, the PRCA contains some specific rules for private enforcement. Private enforcement in Slovenia is mainly focused on damage claims, where the general rules for damages apply. District courts are competent in civil disputes and can adjudicate on such claims. If the damage has been caused by the infringement of provisions of Article 9 of the PRCA or Article 102 TFEU, the court shall be bound by the final infringement decision of the CPA or the final infringement decision adopted in the judicial protection procedure against a CPA decision. If the existence of an infringement of competition law is found by a final decision of an authority of another Member State or a final decision of the court in another EU Member State, empowered by ordinary means of appeal to review decisions of an authority of another Member State, it is presumed that the infringers specified in the infringement decision acted unlawfully, whereby evidence to the contrary is admissible. The statute of limitations for compensation claims is suspended from the date when the competition authority (i.e., the CPA, the European Commission or an authority of another Member State) takes action for the purpose of the investigation or its proceedings in respect of an infringement of competition law to one year after the infringement decision has become final or after the proceedings are otherwise concluded. The time elapsed before the suspension of the limitation period is included in the limitation period.

In the past, filing collective (class) actions was not possible under Slovenian law. However, courts were able to join actions if several actions have been lodged at the court with the same or similar factual and legal bases. In autumn 2017, a new Class Actions Act19 was adopted that will, as of May 2018, allow collective actions for antitrust damages claims.

Article 37(2) of the PRCA provides a legal basis for the CPA to order a dominant firm to grant access (to infrastructure or technology), supply goods or services, or conclude a contract. This provision does not apply to private suits before the national courts. Consequently, the national courts have the power to order a defendant to provide access to its infrastructure or network or other obligations only within the scope of the provisions of Article 133 of the Code of Obligations, which provide that at the request of an interested person, the court can order appropriate measures to prevent the occurrence of damage or alarm or to dispose of a source of danger, to be taken at the expense of the possessor thereof should the latter fail to do so.20

In practice, cases of private enforcement have tended to be rare, mostly because of difficulties in meeting the burden of proof in damage claims. The injured party must prove the existence of an unlawful damaging act, damage (existence and amount of loss) and causation. Nevertheless, in recent years there has been an increase in the number of private suits before the national courts where market participants seek protection of their interests directly through damage claims.

VIII Future Developments

In May 2017, a number of significant changes were made to the PRCA with the implementation of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union. As a result of the transposition of the Directive into national law, the PRCA now also includes provisions governing, most notably:

  1. the uniform right to full compensation for natural or legal persons who have suffered harm caused by an infringement of competition law;
  2. evaluation of damages;
  3. disclosure of evidence;
  4. implications of final infringement decisions of the CPA;
  5. specific rules on joint and several liability;
  6. limitation periods;
  7. the ‘passing-on’ defence;
  8. indirect purchasers;
  9. the effect of consensual settlements on subsequent actions for damages; and
  10. cooperation between the courts, European Commission and the CPA, etc.

It is expected that these new substantive and procedural rules will facilitate the private enforcement of competition law in Slovenia.

1 Andrej Fatur is a senior partner at Fatur Law Firm and Helena Belina Djalil is an attorney-at-law and external expert at Fatur Law Firm.

2 ZPOmK-1 (Official Gazette of the Republic of Slovenia No. 36/08), ZPOmK-1A (Official Gazette of the Republic of Slovenia No. 40/09), ZPOmK-1B (Official Gazette of the Republic of Slovenia No. 26/11), ZPOmK-1C (Official Gazette of the Republic of Slovenia No. 87/11), ZPOmK-1D (Official Gazette of the Republic of Slovenia No. 57/12), Act Amending the Courts Act (Official Gazette of the Republic of Slovenia No. 63/13), ZPOmK-1E (Official Gazette of the Republic of Slovenia No. 33/14), ZPOmK-1F (Official Gazette of the Republic of Slovenia No. 76/15) and ZPOmK-1G (Official Gazette of the Republic of Slovenia No. 23/17).

3 CPA decision No. 306-43/2012-466 of 10 November 2017.

4 CPA decision No. 306-14/2009 of 13 February 2012. See also Supreme Court decision No. G 9/2012 of 26 November 2013.

5 CPA decision No. 3072-2/2004-132 of 25 October 2013. See also Administrative Court decision No. I U 1871/2013 of 9 December 2014, Supreme Court decision No. X Ips 58/2015 of 15 July 2015 and Administrative Court decision No. I U 1057/2015 of 3 November 2015.

6 Administrative Court decision No. I U 423/2015 of 9 January 2018.

7 CPA decision No. 306-23/2013-151 of 2 February 2015. See also press release of the CPA, 16 February
2015: ‘Slovenian Competition Protection Agency concluded with the assessment of abuse of dominant position by Telekom Slovenije’, available (in English) on the CPA’s website: www.varstvo-konkurence.si.

8 Supreme Court decision No. G 9/2012 of 26 November 2013.

9 Administrative Court decision No. I U 203/2015 of 13 May 2015.

10 CPA decision No. 306-90/2009-169 of 24 April 2013. See also Supreme Court decision No. G 7/2013 of 3 December 2013.

11 CPA decision No. 306-93/2008-267 of 8 November 2010. See also Supreme Court decision No. G 47/2010 of 11 June 2013.

12 The case is still pending (see Section II).

13 CPA decision No. 306-43/2012-162 of 23 December 2014. See also Administrative Court decision No. I U 203/2015 of 13 May 2015.

14 CPA decision No. 306-35/2009-108 of 8 April 2011. See also Supreme Court decision No. G 24/2011 of 27 January 2014.

15 CPA decision No. 306-5/2011 of 9 August 2012.

16 Administrative Court decision No. I U 423/2015 of 9 January 2018.

17 The Criminal Code contains, in Article 225, the criminal act ‘unlawful restriction of competition’, which incriminates abuses of a dominant position of one or more companies. However, although criminal sanctions are theoretically available, undertakings or individuals are not pursued in practice. Additionally, a business entity can also be held responsible for the same offence in accordance with the Liability of Legal Persons for Criminal Offences Act.

18 If there are reasonable grounds to suspect that business books and other documentation relating to the subject matter of an inspection are being kept at the mentioned premises. In this case, Article 33 of the PRCA provides that the CPA must obtain a court order to search the premises from a judge of the competent court in Ljubljana, and that during the inspection of the residential premises, two adult witnesses must be present.

19 Official Gazette of the Republic of Slovenia No. 55/17.

20 See, for example, Supreme Court decision in the telecommunications case No. III Ips 98/2013 of 23 May 2014.