The distributor may be granted exclusivity with respect to certain territories or customers or certain distribution channel. However, any exclusivity arrangement should fully comply with antitrust rules, failing which the exclusivity arrangement would be considered null and void, and the parties may be fined for breach of the antitrust rules by the competent competition authorities. The 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”) prohibits, as null and void, any agreements between undertakings, decisions by associations of undertakings, and concerted practices of undertakings (agreements), which have as their object or effect the prevention, restriction, or distortion of competition in the territory of the Republic of Slovenia, with some actions stated as examples of prohibition. This prohibition applies, among others, to agreements that limit or control production, markets, technical progress, or investment, or that share a market or sources of supply. The prohibition laid down under the ZPOmK-1 is substantially the same as under the Article 101 TFEU. The same applies for the possibility and conditions for exemptions in line with Article 101(3) TFEU.
Accordingly, exclusivity provisions or any other restrictive agreement(s) contained in a particular distribution agreement may benefit from the exemption under the Article 101(3) TFEU and the Vertical Block Exemption Regulation (Commission Regulation (EU) No. 330/2010 of 20 April 2010). In relation to vertical restraints, Slovenian legislation explicitly refers to EU legislation that is applicable even if there is no indication of an effect on trade between EU Member States. Based on the aforementioned:
- the distributor’s active sales to certain territories or customers may, as described above, be restricted only if such restriction fully complies with the applicable antitrust laws.
- passive sales by a distributor cannot be restricted. This also applies to online sales via websites, whereby the supplier may request the distributor to meet certain standards.
- as regards the restriction on distributor’s sales via marketplaces, the EU rules and case law of the CJEU shall apply (as there are no specific rules on the issue under the Slovenian laws and regulations).
The distributors selling the goods to consumers shall also comply with the Slovenian consumer protection act, which includes rules on distance contracts, language requirements, product liability, advertising, unfair contractual terms, and others; and with the Slovenian Electronic Commerce Market Act, which includes mandatory rules on contractual obligations with consumers including rules on conclusion of online agreements, general obligation on securing data before and after conclusion of online agreements. For instance, before the conclusion of an online agreement, a customer shall be provided with details on the procedures for conclusion of the agreement (i.e. technical details regarding the process, including how the errors before placing an order may be corrected), information in which languages (besides the Slovenian) the agreement may be concluded, and whether the agreement will be stored, or where the agreement will be accessible to the customer. The concluded agreement must be made available to the customer in such a manner that the customer should be able to store it and/ or reproduce it at any time). A distributor is also required to fully comply with the data protection rules. While the distributor would normally not be able to limit its liability towards consumers, the supplier may limit its liability towards the distributor whereby such a limitation of liability would not be valid and enforceable in case there is wilful misconduct or gross negligence on the part of supplier, or in the event of manufacturers’ liability for a defective product.
It should also be noted that Slovenian laws provide specific rules in the event the contract is prepared or otherwise proposed by one party, or the agreement is using content printed in advance by one party. In such cases, unclear provisions must be interpreted in favour of the other party. If the general terms and conditions prepared by one contracting party apply, provisions that oppose the actual purpose for which the contract was concluded or are contrary to good business practices shall be null and void under the Slovenian law, and further, the court may reject the application of (i) individual provisions of general terms and conditions by which the other party’s right to object or appeal is waived, or (ii) provisions based on which a party loses contractual rights or deadlines, or (iii) that are otherwise unjust or too strict for the party. Therefore, when preparing the terms and conditions, it is recommended to consider interests of both parties, and prepare a well-balanced document in order to avoid the risk of certain provisions being declared invalid or unenforceable.