SLOVENIA Law and Practice Contributed by: Bojan Brežan, Marko Frantar, Maks David Osojnik and Špela Lovšin, Schoenherr Slovenia
the certification stage), so it is not yet possible to esti- mate an average length of proceedings. 3.8 Mechanisms for Changes to Length/ Timetable/Disposal of Proceedings The Collective Actions Act does not provide for any specific procedural mechanisms that would enable the court to deviate from the principles and timelines outlined in 3.7 Length and Timetable for Proceedings ‒ for example, the acceleration, summary disposal or delaying of claims. 3.9 Funding and Costs Costs The general rule on costs is the “loser pays” principle. The obligation of the losing party is, however, limited by statutory provisions for maximum recoverable amounts that are calculated on the basis of official tariffs. In order to reduce the cost risk for claimants in collective redress proceedings, specific rules for determining the amount in dispute apply ‒ namely, for compensatory collective actions, the amount is set at 20% of the claim for aggregate damages or 20% of the estimated value of all claims of persons affected by the disputed measures, as applicable. For collective injunction proceedings, the estimated value of the dispute may not exceed EUR10,000, irre- spective of the economic importance of the dispute. The court should also take into account the com- plexity of the case, as well as its importance to the defendant, collective rights and public interest. In addition to “ordinary” litigation costs (eg, court fees and attorney fees), the collective action regime also allows the claimant to demand recovery of neces- sary costs incurred by organising and informing the (potential) members of the class in order to bring the collective action. Third-Party Funding Third-party litigation funding is explicitly permitted and regulated. In order to avoid a conflict of interests, the claimant is obliged to disclose the existence of third-party funding and the origin of the funds used. The regime governing third-party funding was amend- ed by virtue of the ZKolT-A amendment that came into force in January 2024. In broad terms, the court
should refuse to certify a collective action if it finds that: • a conflict of interest exists between the third party and the claimant or members of its class; • the funder intends to fund a collective action against a defendant who is its competitor or against a defendant on whom the funder is dependent; • the funder does not have sufficient resources to meet its financial obligations to the claimant; • the claimant fails to demonstrate that it has suf- ficient resources or adequate security to reimburse the costs of the counterparty if it does not succeed with the collective action; or • the premium agreed is not reasonable. Third-party funders are also prohibited from attempt- ing to exercise decisive influence over the claimant’s procedural decisions (including a decision to settle) if these are not in favour of the collective interests of the members of the class. Lawyer Success Fees and Lawyer-Funded Litigation Another distinct feature of collective action funding in Slovenia is the availability of lawyer-funded litigation on the basis of contingency fees. As a rule, lawyers may receive a contingency fee of up to 15% of the amount of the compensation awarded by the court to the entire class. Any agreement on lawyer-funded liti- gation must be approved by the court during the cer- tification stage. During this stage, the court assesses whether the agreed success fee is reasonable, taking into consideration various factors. These include the complexity of the dispute, the level of risk undertaken by the lawyers in relation to costs and complexity, and the class members’ rights to full compensation. 3.10 Disclosure and Privilege Common law concepts of disclosure and discovery are foreign to the Slovenian proceedings. Generally, each party is obliged to provide the evidence in sup- port of its claim. However, under the general rules of civil procedure that may also be applied in collective action proceedings, a party has an option – albeit a limited one (ie, conditions apply and this is not an enforceable claim) – to request the provision of docu-
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