SLOVENIA Law and Practice Contributed by: Markus Bruckmüller, Klemen Radosavljević and Matej Kraner, Wolf Theiss Attorneys-at-law
5.2 Form Requirements Certain security agreements must be formal- ised as notarial deeds ( notarski zapis ) in order to ensure their validity and enforceability or to safeguard against bankruptcy risks. If no spe- cific form is required, opting for a notarial deed can enhance the lender’s security and offer extra benefits, such as the right to enforce the agree- ment directly, provided it contains the features that are required to ensure direct enforceability. In the case of a directly enforceable notarial deed, the creditor can directly request the enforcement of the claim in an enforcement procedure against the debtor/pledgor, as the directly enforceable notarial deed is considered as an enforcement title (for more detail see 5.7 General Principles of Enforcement ). The forms required to establish a security inter- est over the most common security interests are listed below. Share Pledge The agreement on the creation of a pledge of business shares in a Slovenian limited liability company must be concluded in the form of a notarial deed, while a pledge agreement over shares in a Slovenian joint-stock company must be concluded in writing. Real Estate A mortgage is established on the basis of a written agreement and a land registration per- mit ( zemljikoknjižno dovolilo ) authorising the registration of the mortgage in the land register ( zemljiška knjiga ). The land registration permit may be included in the agreement and must be notarised. In practice, mortgages are usually concluded in the form of a (directly enforceable) notarial deed ( notarski zapis ).
the depository bank is notified of the pledge. A pledge or a fiduciary assignment of an account balance may be effective only if the pledgor/ assignor, as the account holder, has a full and unencumbered title to the balance on such account and has the power to dispose of such balance. Intellectual Property Rights In the case of intellectual property and other intangible assets, the only form of security avail- able is a pledge – only transferable intellectual property rights can be pledged. As trade names can only be transferred with (part of) the busi- ness to which they relate, it is debatable whether a trade name can be pledged separately from the business. Personal rights relating to intellec- tual property are not transferable and therefore cannot be pledged. Furthermore, it is possible to pledge rights related to an intellectual property right (eg, licences). Financial Collateral Arrangements Slovenia has implemented Directive 2002/47/EC on financial collateral arrangements by adopting the Financial Collateral Act ( Zakon o finančnih zavarovanjih (ZFZ)). As a result, financial collater- al may be provided through a financial collateral arrangement ( dogovor o finančnem zavarovan - ju ). The financial collateral to be provided may, inter alia, consist of cash (ie, cash credited to an account or deposit), financial instruments (ie, securities traded on capital markets, provided that the securities are easily transferable and quickly tradable) or loan receivables, and the collateral taker and collateral provider must meet certain eligibility criteria. A financial collateral arrangement may create a security interest in the form of a pledge or a fiduciary transfer whereas the collateral taker may dispose of the collateral or may enforce the collateral by offsetting the value of the collateral against the secured claim.
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