SLOVENIA Law and Practice Contributed by: Markus Bruckmüller, Klemen Radosavljević and Matej Kraner, Wolf Theiss Attorneys-at-law
• approval of creditors of each of the merg- ing companies that have claims exceeding 5% of all liabilities of the company (individual approval by creditors); and • approval of employees of each merging company – on their behalf and in their name, the approval is given by their representative in compliance with the act governing the par- ticipation of employees in the management (employees’ approval). Specific financial assistance rules apply to Slo- venian banks. A bank may not directly or indi- rectly provide credit or guarantees for the pur- chase of its own shares or those of companies in which it holds at least 20% of the capital or voting rights. The same applies to legal trans- actions with a comparable effect, as well as to capital and other instruments issued by the bank (or another company in which the bank holds at least 20% of the capital or voting rights), which are to be included in the calculation of the bank’s or that other company’s capital. In addition, (i) the rules of concerning corporate groups ( koncern ) may impose obligations on both the controlling and the controlled compa- nies; and (ii) the articles of association or by-laws may impose restrictions on the creation of secu- rity interests or stipulate that additional approv- als may be required. 5.7 General Principles of Enforcement If necessary, a secured creditor will have to pur- sue judicial enforcement with regard to its col- lateral in accordance with the Slovenian Enforce- ment Act ( Zakon o izvršbi in zavarovanju (ZIZ)), which, among other things, requires the comple- tion of the following steps:
• obtaining an enforcement title ( izvršilni naslov ), eg, a court ruling on non-payment by the borrower; • filing a motion for enforcement ( predlog za izvršbo ) with the relevant Slovenian county court; • obtaining a decision from the relevant Slove- nian county court that enforcement is permis- sible ( sklep o izvršbi ); • enforcement through a public auction; and • distributing the proceeds of the public auc- tion to the secured creditor to settle secured claims. Enforcement titles include: • an enforceable judgment or court settlement; • a directly enforceable notarial deed; and • any other decision or instrument provided for by law, a ratified and published international treaty, or a directly applicable legal act of the European Union, which is recognised as an enforcement title. The enforcement for recovering of monetary claims is allowed also on the basis of on an authentic instrument (invoice, bill of exchange, cheques with protest, and return invoices) evi- dencing the claim, provided that the creditor specifies the claim’s due date in its application. If the collateral agreement grants the creditor the right to enforce out of court, they can pro- ceed with the sale outside of enforcement pro- ceedings. This is usually stipulated in a share pledge agreement, an intellectual property pledge agreement, and in certain cases, a mov- able pledge agreement. In the case of a mort- gage, enforcement is highly formalised – only a sale through court proceedings is possible. The mortgaged real estate is typically sold in a public auction, whereas after the enforcement proce-
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