Supreme Court of the Republic of Slovenia revokes Ruling of Slovenian Competition Agency
Jul 30, 2020
Seized Mercator shares have to be returned to Agrokor
The Supreme Court of the Republic of Slovenia passed a judgement pursuant to which the shares of Mercator, that were by decision of the Public Competition Agency of the Republic of Slovenia (Javna agencija Republike Slovenije za varstvo konkurence – AVK) temporarily seized late last year, have to be returned to Agrokor without delay.
The State Attorney's Office of the Republic of Slovenia had filed a request for the protection of lawfulness with the Supreme Court of the Republic of Slovenia whereby the State Attorney's Office essentially stated that the Slovenian AVK, by seizing the Mercator shares from Agrokor, had acted unlawfully. With its final and non-appealable judgement the Supreme Court has confirmed such claim and changed AVK's decision, thus halting the procedure that AVK had brought against Agrokor, in which the Mercator shares were seized. The Supreme Court has thus enabled Agrokor to freely dispose of the shares.
The Supreme Court declared the seizure of shares to be unlawful, argueing that AVK had no legal grounds to issue a ruling to seize the shares. In particular, Item 5 of Art. 201 of the Slovenian Misdemeanor Act stipulates that the decision to seize property can be made if there is a »concern that the perpetrator may hide or travel abroad during the infringement proceedings or prior to the execution of the decision«. The Supreme Court established that it was conceptually impossible for a legal person to »hide, travel to an unknown location or abroad« and that there were no substantive legal grounds to seize the shares from Agrokor. The judgement indicates that, by passing the unlawful seizure decision, AVT completely wrongfully applied Art. 201 of the Slovenian Misdemeanor Act, the goal and intention whereof solely apply to natural persons for whom there is a possibility to »hide or travel to an unknown location«. For those reasons, the Supreme Courts states, Mercator shares have to be returned to Agrokor without any further delay.
This judgement of the Supreme Court provides for the return of property to Agrokor slightly more than a month after the Court Okrajno sodišče of Ljubljana already altered AVK's decision on the amount of the fine and reduced the original amount of as much as EUR 53.9m to EUR 1m, explaining that not having reported the concentration was not the result of the »intention to bypass the concentration filing in order to cause possible harmful effects on market competition«, but was rather »the result of negligence of the responsible person Ivica Todorić«. Due to the fact that the court has not accepted all arguments, Agrokor appealed against this decision to the High Court of Ljubljana and has continued to apply legal means to refute the argumentation used by AVK in establishing the alleged breach of provisions.
Fabris Peruško, Chief Executive Officer of Fortenova Group, to which the Mercator shares are to be transferred, said: »We welcome the judgement of the Supreme Court, which shows that by protecting lawfulness, key institutions also improve the investment climate in Slovenia. We expect for the free disposal of shares to be made possible within shortest time and are still planning to realize the transfer of Mercator shares to Fortenova Group by the end of this year.«
Peruško also used the occasion to reiterate that transferring Mercator to Fortenova Group as soon as possible was primarily in the direct interest of Slovenia's largest retail chain, its suppliers and the entire economic environment in Slovenia. »Due to its multiplying effect on the economy, Mercator is a company of systemic importance for the Slovenian economy. By the transfer from Agrokor, a company in bankruptcy, Mercator will find itself in the ownership of the stable and capital-strong Fortenova Group, whose ultimate goal is to make Mercator a strong local-supplier-oriented regional retailer«, Peruško said, concluding: »As already stated several times, in Mercator as part of Fortenova Group the entire Slovenian economy will gain a financially strong and stable partner and buyer of its goods. The cooperation with local suppliers and the maintenance and development of shorter supply chains is one of the key determinants of Fortenova Group's regional retail development strategy and constitutes an important competitive advantage. After the Mercator shares are transferred to Fortenova Group, the local suppliers can therefore continue to count on their position at Mercator.«