Slovenia

The financial crisis of 2008 hit Slovenia hard, and its economy has only recently managed to recover. Excessive borrowing in the ‘golden years’ prior to 2008, combined with imprudent financial institutions and failed investments, caused the insolvency of many well-established market players, especially in the construction industry, and forced a significant number of companies from virtually all sectors of the economy to financial and operational restructuring. At this time, Slovenia introduced a new Insolvency Act,^[1] which came into force in the midst of the crisis, on 1 October 2008. However, this Act was insufficiently prepared for the situation that was to unravel in the coming years, which meant that it had to be amended eight times to adapt to the new reality of the Slovenian economy, and implement an easier and more effective approach to the financial restructuring of insolvent and soon-to-be-insolvent debtors, especially for restructuring of financial claims. These amendments seem to have been successful; in its Doing Business 2018 report, the World Bank ranked Slovenia as ninth in the world in the Resolving Insolvency index (compared to 12th in 2016).^[2]

The law recognises two core types of insolvency proceedings: compulsory settlement, the purpose of which is financial restructuring of the insolvent debtor; and bankruptcy. Although the legal consequences of the two types differ significantly, they both have an impact on creditors’ claims. Commencement of an insolvency procedure significantly limits the creditors’ right to judicial enforcement of their claims: the creditors may not initiate any new enforcement or interim security proceedings regarding their claims for the duration of the insolvency procedure, and the existing enforcement and interim security proceedings are either terminated or suspended, depending on the state of the procedure.^[3] Furthermore, upon commencement of the insolvency procedure, all non-pecuniary claims are converted to pecuniary claims at market prices at commencement of the procedure, claims in foreign currencies are converted to euros at the official rates of the Bank of Slovenia, and the claims of individual creditors are automatically set off against counterclaims of the debtor against the creditor (with certain exceptions in bankruptcy).^[4]

Insolvency

Pursuant to article 14 of the Insolvency Act, insolvency is a situation in which the debtor is experiencing either long-term illiquidity (ie, the debtor is unable to settle all its liabilities that have matured over a long period of time) or a long-term payment incapability. Neither of these positions are further defined, as they have to be determined on a case-by-case basis pursuant to the financial position of each debtor; nevertheless, the Insolvency Act sets forth certain assumptions of insolvency to ease creditors’ burden of proof in insolvency procedures.

If the debtor is a legal entity, long-term illiquidity is presumed when:

• the debtor is in default with payment of one or more obligations exceeding 20 per cent of all its liabilities set forth in its last published annual report, with the default lasting for more than two months;
• for 60 consecutive days or for 60 days within 90 (consecutive) days, the debtor does not have sufficient funds in its bank accounts to execute an enforcement order and this position persists on the day before filing for insolvency; or
• the debtor has no bank accounts opened in Slovenia and has not paid its liabilities arising out of an enforcement order within 60 days after the enforcement order has become final.

If a compulsory settlement procedure over a debtor has been confirmed by a final decision, the debtor is presumed to be in a state of long-term illiquidity if it defaults for over two months on:

• payment of its liabilities pursuant to the confirmed compulsory settlement;
• payment of its liabilities against the secured creditors (ie, creditors holding claims secured by the right to separate payment, meaning the right to be paid from certain assets of the insolvent debtor before the claims of other creditors are paid from these assets, for example, pledge or retention rights); or
• performance of financial restructuring measures, set forth in the debtor’s financial restructuring plan.

The above-mentioned presumptions may be challenged by the debtor if the insolvency proceeding is instated at the creditor’s petition. However, it is irrefutably presumed that the debtor is in a state of long-term illiquidity if it defaults for over two months with either payment of employees’ wages up to the value of minimal wage or with payment of taxes and social contributions, which have to be accounted for and paid on behalf of the employees by the employer together with the wages.^[5]

It is presumed that the debtor is in the state of long-term payment incapability if: (i) the total amount of its liabilities exceeds the value of its assets; or (ii) the net loss of the current year, together with the transferred losses, exceeds half of the subscribed capital and the loss cannot be covered by transferred profit or reserves.

As soon as the debtor becomes insolvent, it is prohibited from making payments or assuming new liabilities unless either is required for the regular course of its business. The debtor’s management has to analyse the reasons for the debtor’s insolvency and prepare a report on measures of financial restructuring within one month of the day it confirms the debtor’s insolvency. At the same time, the management has to verify that there is at least a 50 per cent possibility that by implementing measures of financial restructuring the debtor will regain its short- and long-term payment capability, and that there is at least a 50 per cent possibility that the compulsory settlement will be confirmed if these measures are insufficient. If either of the possibilities is lower than 50 per cent, the management has to file for bankruptcy.^[6]

Voluntary restructuring

The preventive restructuring procedure is intended for debtors (small, medium or large corporations pursuant to the Companies Act)^[7] that are not yet insolvent, but a likelihood persists that they will become insolvent within one year.^[8] Although the procedure may only commence at the debtor’s request, creditors holding at least 30 per cent [of the] aggregate value of financial claims^[9] listed in the debtor’s list of financial claims, certified by an appointed auditor, have to consent therewith. Upon commencement of the preventive restructuring procedure, a standstill applies for the claims included in the debtor’s list of financial claims and the creditors may not initiate enforcement or interim security proceedings regarding these claims.^[10]

Within three to five months of commencement of the preventive restructuring procedure, the debtor and creditors holding at least 75 per cent of the aggregate value of financial claims that are listed in the debtor’s list of financial claims^[11] have to conclude a master restructuring agreement (MRA) and request court confirmation thereof. The parties to the MRA are free to agree on whichever restructuring measures they consider appropriate for elimination of the insolvency threat (provided that these measures are confirmed by a certified auditor) and the court does not verify the contents of the MRA. By its decision to confirm the MRA, the court extends the validity of the MRA to financial claims of those creditors that have not given their consent to the MRA,^[12] provided that the claims were included in the debtor’s list of financial claims. Mandatory effects of the court-confirmed MRA only extend to the restructuring measures: if the parties of the MRA agreed to any creditors’ obligations against the debtor or among themselves, these obligations do not apply to creditors, who have not consented to the MRA. However, if the MRA establishes creditors’ rights against the debtor, these rights should also apply to creditors that are not parties to the MRA.^[13]

With the exception of the preventive restructuring procedure, the Insolvency Act does not govern any other type of pre-insolvency procedure. However, pursuant to the general principles of civil law, the debtor may at any time enter into an agreement with its creditors, whereby the parties agree to (financial) restructuring of creditors’ claims outside the scope of the preventive restructuring procedure. This voluntary and contractual restructuring is common, especially with non-financial claims (ie, claims of the debtor’s suppliers as well as other claims from the debtor’s regular course of business), as these claims cannot be restructured by the MRA concluded in the preventive restructuring procedure. As there is no mandatory audit of the agreement on restructuring, voluntary restructuring may also save costs for the parties involved.

The parties to the voluntary and contractual restructuring may agree to any restructuring measure deemed appropriate by them, and the agreement may be concluded at any time (regardless of whether a threat of insolvency exists or even after the debtor becomes insolvent, provided that in the latter case the debtor’s management complies with its obligations pursuant to the Insolvency Act). The agreement on restructuring does not have any effect on the claims of creditors that are not parties to the agreement, nor does commencement of the negotiations impose a standstill or prevent creditors’ enforcement of the claims in the enforcement procedure.

Compulsory settlement

In the compulsory settlement, the debtor undergoes financial restructuring, through which it eliminates reasons for its own insolvency and, upon completion of the procedure, continues with its business activities. Creditors control the compulsory settlement procedure through their participation in the creditors’ committee and through their decision-making powers when approving the compulsory settlement. No forced sale of the debtor’s assets occurs in the compulsory settlement procedure.

Compulsory settlement may commence at the proposal of the debtor or of its creditors holding financial claims in the aggregate value of at least 20 per cent of all the debtor’s financial liabilities set forth in its last published annual report.^[14] The debtor’s proposal for compulsory settlement, in which it proposes that the creditors’ ordinary claims are either partially written off and their payment is deterred, may only apply to ordinary (ie, unsecured) claims; secured, priority and subordinated claims are exempt and the approved compulsory settlement does not apply thereto. However, if the debtor proposes a transfer of claims to it as creditors’ capital contribution in rem (conversion into equity), the proposal may also be addressed to creditors holding secured claims;^[15] these creditors may also be offered more favourable conditions or larger shares in comparison to creditors holding ordinary claims.

The proposal may also be limited to restructuring of only financial claims or to restructuring of financial and secured claims. In this event, the secured claims may only be restructured through deterred payment thereof or through lowering of the interest rate; if a claim is secured with more than one right to separate payment, such rights may be merged into one joint right to separate payment.

The amendments of the Insolvency Act 2013 have significantly eased performance of debt-to-equity conversions, as the conversion may take place upon a resolution of the creditors’ committee, if it was not proposed by the debtor. The resolution of the creditors’ committee on the share capital increase must also include an option for holders of secured claims to convert their claims into share capital at a conversion rate that is 25 per cent more favourable than the conversion rate for ordinary claims; if the conversion is proposed by the debtor, the resolution on share capital increase by in-kind contributions has to be adopted by the debtor’s general meeting. The creditors are free to choose whether they will convert their claims to equity or restructure their claims as proposed.

Approval of the compulsory settlement is decided by a vote of creditors with recognised or plausibly demonstrated claims. Creditors’ voting rights depend on the amount and type of their respective claims. The amount of each recognised or plausibly demonstrated claim of creditors is thereby taken into consideration, multiplied by a quotient for voting on compulsory settlement. Compulsory settlement is approved if the adoption is voted for by creditors with total weighted amounts of claims equalling at least six-tenths of the sum of weighted amounts.^[16] Hence abstaining from casting a vote is equivalent to voting against the proposed compulsory settlement.

Following approval of the compulsory settlement, the creditors are only entitled to receive payment of their claims in the proportion and within the time frame set forth in the approved compulsory settlement. Failure to approve compulsory settlement results in the debtor’s bankruptcy, with certain exceptions.

Bankruptcy

Bankruptcy proceedings can be instituted by the proposal of the debtor, its personally liable shareholder, a creditor proving that the debtor is in default with payment of its claim for more than two months or the Guarantee, Child Support and Disability Fund of the Republic of Slovenia (only if the debtor is in default with payment of employees’ claims).^[17] In certain instances, when compulsory settlement proceedings fail, the court puts the debtor into bankruptcy proceedings ex officio. In its decision to commence bankruptcy proceedings against a debtor, the court also appoints a bankruptcy trustee who immediately takes over the debtor’s management, its premises and documents, and acts as its legal representative until final dissolution.

Within three months of the commencement of the bankruptcy proceedings, creditors have to notify their claims to the bankruptcy trustee; creditors holding secured claims have to notify both their claims and their rights to separate payment. All claims existing at the time of the bankruptcy proceeding’s commencement, whether due or not, and including conditional claims and recourse claims of co-debtors and guarantors, have to be notified. If the creditor fails to notify its claim or the right to separate payment in due time, the claim ceases to exist in relation to the debtor and the creditor loses the right to be repaid from the bankruptcy estate or the right to separate payment, unless it holds a valid title to enforce security by way of extrajudicial sale.

As the goal of the bankruptcy proceeding is to monetise the debtor’s assets to form the bankruptcy estate, from which the creditors’ claims are repaid, the bankruptcy trustee has to appraise the value of the assets and estimate the most suitable timing and manner for sale of the assets. The assets are usually sold on a public auction or by invitation to place binding offers (with the exception of securities traded in capital markets, perishable goods and the debtor’s inventory without market value); the money raised with the monetisation of the assets forms the general distribution estate. Special rules apply for the sale of the debtor’s assets subjected to the creditor’s right to separate payment: the respective creditor has to give its opinion or consent to the planned sale of the assets, while money raised with monetisation of each of the assets forms the special distribution estate. Secured claims are paid from the respective special distribution estate, while the general distribution estate covers the costs of procedure, followed by preferred claims, ordinary claims and, lastly, subordinated claims.

Cross-border insolvency proceedings

As an EU member state, Slovenia abides by Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (the Insolvency Regulation), which facilitates recognition of insolvency proceedings that span multiple jurisdictions. Insolvency proceedings, set out in Schedule A of the Insolvency Regulation, commenced in any EU member state have direct effect in Slovenia, and no recognition of the proceedings is required.

However, recognition is required for insolvency proceedings commenced in third countries and for any proceedings not included in the aforementioned Schedule A. Slovenia is one of only five EU member states that have implemented the UNCITRAL Model Law on Cross-Border Insolvency.^[18] Foreign creditors are given the same rights as domestic creditors and foreign trustees have the right of access to Slovenian courts, including the right to request recognition of a foreign proceeding in a fairly simplified procedure. Upon recognition of a foreign insolvency proceeding, either as a main or auxiliary procedure, the creditors may not initiate any new enforcement or interim security proceedings, and the existing enforcement and interim security proceedings are suspended, and the rights of the debtor’s representation are transferred to the trustee. The recognising court may also decide on other legal consequences of the foreign insolvency proceeding.

Legal issues related to cross-border insolvency and its recognition gained momentum in 2017 with the demise of Agrokor, a Croatian conglomerate that, inter alia, is also the largest shareholder of Mercator, the largest Slovenian retailer. In late 2016, Agrokor encountered financial difficulties and was unable to settle its liabilities against its financial creditors. To prevent Agrokor’s bankruptcy, the Croatian government adopted the Act on Extraordinary Administration Proceedings in Companies of Systemic Importance for Croatia (commonly known as the Lex Agrokor) and, in April 2017, commenced an extraordinary administration procedure (EAP) over Agrokor (including all of its Croatian subsidiaries) and appointed its administrator. As some creditors, dissatisfied with commencement of the EAP, took steps to enforce their claims in Slovenia by seizing Mercator shares, Agrokor requested recognition of the EAP in Slovenia pursuant to the Insolvency Law.^[19]

Although the District Court in Ljubljana initially recognised the EAP, it reverted this decision following the creditors’ appeal.^[20] In its landmark decision, also upheld by the Supreme Court,^[21] the District Court set the standards that a foreign insolvency procedure must comply with to be recognised: it has to be a collective (judicial or administrative) procedure, it has to be pursuant to a law relating to insolvency, it has to be controlled or supervised by a foreign court, and its purpose has to be reorganisation or liquidation of the debtor.

According to the Court, the EAP failed to meet these standards. Pursuant to the Lex Agrokor, the EAP implemented a principle of material consolidation, with some minor but important omissions. Although this consolidation might be appropriate under special circumstances (as set forth in the UNCITRAL Legislative Guide on Insolvency Law), these circumstances did not exist in the case of Agrokor; as in legal transactions, whereby the companies have taken over guarantees for each other’s liabilities, Agrokor Group companies’ creditors and the companies themselves relied on their legal personalities, their independence from other (related) companies and on the separation of their assets from the assets of other Agrokor Group companies. Moreover, according to the Lex Agrokor, the primary goal of the EAP was to ensure that Agrokor, a company of systemic importance in Croatia, continued to operate, with this goal to be achieved on the shoulders of group companies with better financial standing. Hence, the EAP was neither a collective procedure, as interests of certain creditors were effectively exercised to the detriment of other creditors’ interests, nor a procedure that had the purpose of reorganising or restructuring the debtor.

Furthermore, the Court held that the principle of equal treatment of creditors is a key principle of insolvency procedures in Slovenia, and is therefore part of the public policy. As this principle was not respected in the EAP, it contravened Slovenian public policy.^[22]

Notes