SLOVENIA Law and Practice Contributed by: Markus Bruckmüller, Klemen Radosavljević and Matej Kraner, Wolf Theiss Attorneys-at-law
is in financial distress. Should an equity-replacing shareholder loan be repaid within one year of an insolvency application being filed, the relevant shareholder will be required to repay the amount received to the company. 7.2 Claw-Back Risk Claw-Back Risk in the Event of Bankruptcy Proceedings The claw-back provisions in the Slovenian Bank- ruptcy Act are vital for safeguarding creditors’ interests and protecting them from preferential or fraudulent asset transfers designed to reduce the available bankruptcy estate or hinder finan- cial recovery. Under Article 269 of the Slovenian Bankruptcy Act, the bankruptcy administrator and other creditors may challenge any legally significant act performed by the bankrupt party within one year prior to filing a petition for bankruptcy pro- ceedings (in certain limited cases, the period is 36 months), provided that: • the consequence of the bankrupt’s act of legal significance would be to reduce the pay- ment to the bankrupt’s creditors (damage to the bankrupt’s creditors); • an individual creditor obtained a more favour- able position as a result of the bankrupt’s act of legal significance (granting of advantages to individual creditors) (both referred to as the objective element); and • provided that the other party (creditor), for whose benefit the bankrupt performed the act of legal significance, knew or should have known that the debtor was insolvent (the so- called subjective element). The act of legal significance performed by the bankrupt party, by which the other party (creditor) received something without a reciprocal obligation
or for a reciprocal obligation of minor importance, may be contested even if the subjective element is missing. Such an act may be contested if it was performed within 36 months prior to the filing of the petition (Article 269 of the Bankruptcy Act). Moreo- ver, not only acts of commission but also acts of omission of the bankrupt may be contested (Article 271(3) of the Bankruptcy Act). A transaction or act performed by the bankrupt debtor prior to the 12 and 36 months preceding the filing of the bankruptcy petition may also be contested if the person contesting the transac- tion or act proves that the bankrupt was already insolvent at the time of the transaction or act or that the insolvency arose as a result of the transaction or act. Claw-Back Risk Outside Bankruptcy Proceedings Outside the insolvency proceedings, creditors with due claims may challenge the debtor’s legally significant acts (including any omissions) pursuant to Article 255 et seq of the Slovenian Obligations Code. Any act of legal significance performed by the debtor to the detriment of the creditors may be contested. An act is detrimen- tal to creditors if, as a result of such act, the debtor does not have sufficient assets to satisfy creditors’ claims. In this context, inter alia: • a transaction for profit may be contested if, at the time of the transaction, the debtor knew or should have known that it would be detrimental to the creditors and the third party with whom or for whose benefit the transac- tion was carried out knew or should have known this; or • in the case of a transaction without con- sideration and equivalent transactions, the
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