SLOVENIA Law and Practice Contributed by: Vid Kobe and Peter Gorše, Schoenherr Slovenia
No precedents as to the judicial restructuring proce- dure were available at the time of publication of this guide (9 October 2025). The provisions regulating the new judicial restructuring procedure entered into force on 1 January 2025. 7.5 Risk Areas for Lenders The key risk areas for lenders in the context of insol- vencies of Slovenian debtors may be summarised as follows. Insolvency of a company (within the meaning of ZFP- PIPP) triggers certain obligations of the company and its management, as well as restrictions on doing business. The following provides a high-level, non- exhaustive overview. • Non-essential payments are no longer permitted to be made by the company. • A general prohibition of unequal treatment of credi- tors applies. • The management of the company must file for initiation of an insolvency proceeding within one month. Failure to adhere to these restrictions may, inter alia, result in management liability. Conse- quently, any individual workouts (ie, agreements on repayment and/or restructuring of debt with an individual lender), such as debt-to-asset swaps agreements on the private sale of collateral for the purpose of debt repayment and similar, will require careful/adequate structuring. Moreover, the onset of insolvency (proceedings) will generally trigger the application of various restrictive rules, such as equitable subordination and bankruptcy claw-back/avoidance, briefly summarised below. Equitable Subordination A (direct or indirect) shareholder who granted a loan to the company “at the time when a diligent business- man would have invested additional equity” cannot demand repayment in case of insolvency (equitable subordination). Moreover, if repaid to the shareholder within a year preceding the opening of insolvency pro- ceedings against that company, such loan may be clawed back (irrespective of whether or not the gen- eral insolvency avoidance rules are met). The trigger- ing status (notion of financial distress) is not specified
further by black-letter law, but is generally considered to be broader than technical insolvency – encompass- ing financial distress in the broader sense of the word. The foregoing must be taken into account in scenarios where a lender is also a (direct or indirect) shareholder of the borrower, including in certain mezzanine lend- ing structures (eg, where the lender has acquired an equity stake in the borrower). Bankruptcy Claw-Back/Avoidance Risk A transaction/legal act performed by the debtor within a certain “suspect period” may be challenged/avoided in a bankruptcy proceeding if (i) a consequence there- of was either a decrease in the net value ( čista vred - nost ) of the debtor’s assets or unfair preferential treat- ment of a creditor vis-à-vis other creditors; and (ii) the person to the benefit of which the act was performed knew or should have known that the debtor was insol - vent at the time when the transaction/legal act took place (so-called subjective criterion; fulfilment of the subjective criterion is not required for (significantly) undervalued or gratuitous transactions). Different presumptions regarding the fulfilment of both criteria apply. The suspect period is generally 12 months (or 36 months for (significantly) undervalued or gratuitous transactions) before the motion for initiation of insolvency proceedings is filed; pursuant to the lat- est amendments to ZFPPIPP, where a person seeking to challenge the legal act in question is able to prove that (i) the debtor was already insolvent at the time when the act in question was concluded or fulfilled or (ii) the debtor became insolvent as a result of the challenged act, the act may in principle be challenged without a temporal limit. Lastly, insolvency (ie, CS or bankruptcy) proceedings are governed by relatively complex rules that, in turn, provide a number of remedies to the affected parties. As a consequence, such proceedings may: • yield unpredictable results (turn litigious); • result in delayed recovery; and • result in high costs. (Notably, the foregoing does not apply to secured lenders holding valid out-of-court security enforce- ment rights.)
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