It was expected that this article would analyse the effects of the recent amendment to the Enforcement Procedure and Interim Protection Act and its new obligatory electronic filling regime on enforcement proceedings in Slovenia. But the effects of the amendments are still not clear.
Introduction
On 15 June 2010, the Slovenian legislator adopted a further amendment to the Enforcement Procedure and Interim Protection Act (Zakon o spremembah in dopolnitvah Zakona o izvrabi in zavarovanju; ZIZ-H). One goal of ZIZ-H was to provide further options for electronic filing of motions in enforcement proceedings. ZIZ-H was seen as a substantial improvement in the effectiveness of the enforcement proceeding, saving time and reducing costs for creditors and the courts. It required attorneys, notaries, enforcement officers, and the State Attorney's Office to file all motions in electronic form. Otherwise, their motions would be dismissed without the possibility of correction or supplementation.
Before the new regime enters into force, the Ministry of Justice must adopt the necessary implementing regulation defining in detail: (i) the types of enforcement proceedings in which motions can be filed electronically, (ii) the parties in enforcement proceedings who can file motions electronically, (iii) the manner of identification of such parties, (iv) the motions that can be filed electronically, and (v) the course of such enforcement proceedings. Pursuant to ZIZ-H, the implementing regulation should have been adopted immediately upon fulfilment of the necessary technical requirements, but no later than 1 September 2011. Further, the Ministry of Justice should have issued a decision specifying the date on which the new obligatory electronic filing regime enters into force.
Current status of the upcoming changes
1 September 2011 has come and gone, but the Ministry of Justice has still not adopted the necessary implementing regulation or issued a decision on the date of the new regime's entry into force. The last available information provided to the Slovene Bar Association is that the implementing regulation should be adopted in December 2011 and the obligatory electronic filing regime should enter into force on 1 February or 1 March 2012. Hence, the scope of the changes is still not clear and the implementation of the modernised, more effective enforcement proceeding, envisaged at the adoption of ZIZ-H, has been delayed.
Assessment in light of other electronic proceedings
The delay in implementing a modernised enforcement proceeding might seem a step backwards, but it has certain advantages. The recent modernisation of the insolvency proceeding in 2011 has revealed some of the underlying issues of accelerated modernisation. Obligatory electronic filing of motions for attorneys was introduced even though some of the issues had not been resolved. The consequences were substantial as some attorneys were unable to electronically lodge in due time their client's claims against an insolvent debtor, usually for simple reasons (eg, the motion's size, with attached evidence, exceeded the statutory size limit).
Another issue that became apparent was that the system only allowed electronic filings of certain types of motions even though a different motion was necessary (eg, a complaint when a motion for supplementary decision was necessary). There have also been some issues with the modernised land registry proceeding. Some users have criticised the land registry's decreased transparency and increased administration. But we believe the increased speed of the proceeding outweighs the disadvantages.
Conclusion: Proceed with caution
The above issues, which were revealed in the process of modernising the proceedings, underline that any steps towards modernisation should be taken cautiously.
All of the hidden risks should be assessed and resolved between those who regularly participate in these proceedings before full implementation takes place.
This article was originally published in the schoenherr roadmap`12 - if you would like to receive a complimentary copy of this publication, please visit: pr.schoenherr.eu/roadmap.
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.
