Did you have an unsettled pecuniary claim against a Slovenian company that was deleted ex officio from the companies' register without liquidation due to inactivity? Did you continue the recovery procedure against the shareholder? We suggest you check whether the procedure is still open!
A new act has changed the shareholders' liability regime
The Act on Procedures for the Enforcement or Remission of the Shareholders' Liability for the Obligations of Deleted Companies (ZPUOOD; Official Gazette of the RS 87/2011) entered into force on 17 November 2011. It redefines the liability of shareholders for claims against companies deleted pursuant to the Financial Operations, Insolvency Proceedings and Compulsory Dissolution Act (ZFPPIPP) or the Financial Operations of Companies Act (ZFPPod).
Although the ZPUOOD does not interfere with completed procedures, it no longer permits the submission of new proposals to continue procedures against shareholders under the ZFPPIPP.
Interference with pending proceedings
The ZPUOOD also affects initiated litigation and administrative and execution proceedings in which the creditors of deleted companies exercise the payment of claims against shareholders.
One month from the implementation of the ZPUOOD is the deadline for authorities to issue an ex officio decision suspending any open proceedings under the ZFPPod or ZFPPIPP (the decision must be sent to the parties to the proceedings).
- 17 May 2012 is the last day debtor can submit a proposal for the remission of obligation at the court of competent jurisdiction in the event of personal bankruptcy. If such a proposal is not submitted, the suspended proceedings continue.
- The court may reject a proposal for remission only due to: (i) piercing the corporate veil or (ii) an unspent final judgment of conviction of the shareholder for a criminal offence against property or the economy in connection with the activities of the deleted company.
- The court verifies ex officio whether the shareholder has any previous convictions. If not, the court initiates the remission procedure and issues a notice, to be published in the Official Gazette of the Republic of Slovenia.
- The creditor has two months from the publication to submit to the court an objection (with evidence) against the remission of obligations. Otherwise, the creditor is deemed to have given up the claim.
- If the creditor's objection succeeds, the suspended procedure proceeds in accordance with the regulations in force prior to the suspension.
- If the debtor succeeds, it is cleared of all obligations incurred under the ZFPPIPP or ZFPPod, and the previously suspended procedure is terminated by a decision issued by the competent authority. The creditor may not demand payment of the unsettled claim. Additionally, within 30 days from a final decision on the remission of obligations, the creditor must return to the debtor any payments received after 17 November 2011, plus statutory default interest (currently 9.25% p.a.) in the event of late payment.
- The ordinary legal remedy is an appeal. If the debtor achieved the decision on the remission of obligations by concealing information or presenting false information, or by other deception, the creditor may contest the decision within one year of the final decision.
- In its accounting ledgers, the creditor records the amount of unsettled claims that are the subject of the decision on the remission of obligations and writes them off in accordance with the regulations on the write-off of claims due to debtor bankruptcy.
Conclusion
While the previous regime favoured creditors, the new one unreasonably favours debtors. Rather than using the assets of a deleted company to pay obligations to company creditors, the assets can be divided among the debtors. Additionally, the ZPUOOD infringes on the previously acquired rights of creditors and puts an additional burden on them, while distinguishing between creditors whose claims were repaid before 17 November 2011 and those who were unsuccessful in achieving this.
From the creditors' point of view, the act also infringes on the principle of legitimate expectation in the rule of law. It can therefore be expected that the act will soon be examined by the Constitutional Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.