SLOVENIA Law and Practice Contributed by: Markus Bruckmüller, Klemen Radosavljević and Matej Kraner, Wolf Theiss Attorneys-at-law
Real Estate Mortgage over real estate is perfected by regis- tration in the Land Registry. Fiduciary Assignment and Pledge of Receivables In the case of a pledge of receivables, notice to the underlying debtor of the loan receivable (the latter not required in the case of financial collat- eral) is required for perfection, while in the case of a fiduciary assignment, notice to the under- lying debtor is not required (silent assignment). Movables Pledge For certain types of immovable property that can be clearly identified, a non-possessory pledge is established by registration in the Slovenian Reg- ister of Non-Possessory Pledges. Such a pledge is typically used to pledge stock and equipment. Special rules apply to registered ships, aircraft and registered networks consisting of one or more cables or pipelines. Such registered mov- able property must be registered in the relevant Slovenian public register. IP Pledge Some intellectual property rights and pledges of such rights may be registered with the following registries (however, this is not a prerequisite for the validity of the pledge): • Slovenian Intellectual Property Office ( Urad za intelektualno lastnino Republike Slovenije ); • European Union Patent Office; and • European Union Intellectual Property Office. 5.4 Restrictions on Upstream Security If a Slovenian company guarantees or secures the obligations of its parent company (upstream), which results in a benefit to the parent company, the capital maintenance rules must be taken into account, which apply, inter alia, to all joint-stock
companies and limited liability companies having their registered office in Slovenia. The rules differ depending on whether the company is a limited liability company or a joint-stock company. The restrictions applicable to limited liability com- panies are less strict than those applicable to joint-stock companies. With regard to financial assistance, refer to 5.5 Financial Assistance . In the case of a Slovenian limited liability com- pany, under Article 495 of the Slovenian Com- panies Act, the assets necessary to maintain the share capital and the restricted reserves cannot be returned to a shareholder of the company. This rule is generally interpreted broadly and covers also the granting of a guarantee or secu- rity up-stream or side-stream in a way that could result in a prohibited reduction of its assets. Thus, it is usual to include language into the finance documentation limiting the company’s liabilities to a level which does not contravene the aforementioned rule. In the case of joint-stock companies, capital contributions are not repayable and do not bear interest, as set out in Article 227 of the Slovenian Companies Act. The only permitted payments are dividends and payments relating to the authorised acquisition of treasury shares. Unlike limited liability companies, all of the corpora- tion’s assets are protected by the capital mainte- nance provision. As the prohibition on repaying capital contributions is to be interpreted broadly, it prohibits any form of hidden profit distribu- tion, including the granting of security in favour of a parent company’s creditor(s). In order to limit the risk that such up-stream security could be regarded as void, such transactions should be subject to a proper compensation and prior accounting assessment of the balance sheet, taking into account the respective probabilities of repayment.
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