Q&A: How to collect a claim in Slovenia?

1. What does a debt collection process in Slovenia look like?

Collection out of court

The first phase, but not obligatory, is extrajudicial phase. This phase means sending out-of-court letter of summons, some kind of a reminder to a debtor, which includes a description of the total amount of debt and other costs that the debtor will have to pay in case of enforcement, and the consequences (interest, recovery costs, court fees, transaction account blockages, etc.).

Enforcement of creditors can be filed against debtors just the day after the deadline for payment (after maturity), without having to send them a reminder before enforcement. However, it is common practice to send a reminder to the debtor before enforcement. It is most effective to do this through a attorney at law, as this way the debtor takes the reprimand more seriously. A pre-enforcement reminder is usually a warning where the debtor is reminded of the possibility of recovering the debt through judicial enforce. Reminder indicates the additional deadline by which the debtor must pay the amount, otherwise in case of non-payment, a proposal for enforcement or the creditor will recover the debt through the courts.

Judicial collection

There are three legal procedures that can be initiated.

• 1) Pre-litigation procedure (not obligatory)

The debt can be recovered through the court by initiating enforcement proceedings (Enforcement).Enforcement can be filed on the basis of:

1. Authentic document,
2. Executive title.

Authentic documents include (most common):

• invoice (invoice, interest calculation),
• public document (notarial record, if it does not specify direct enforceability),
• extract from the business books, certified by the responsible person (account card, bookkeeping card, statement of open items – always signed by the legal representative or a person authorized by him),
• a document which, according to special regulations, has the nature of a public document,
• payroll (in the process of salary recovery, reimbursement of transport, meals, …).

Enforcement on the basis of an authentic document is the most common and can only be filed on the prescribed forms or electronically, on the website of the e-Justice.

 Enforcement titles include:

• an enforceable court decision (judgment or decision with a finality and enforceability clause, an arbitral award) and a court settlement;
• enforceable notarial record;
• another enforceable decision or document for which the law, ratified and published international treaty or legal act of the European Union, which is directly applicable in the Republic of Slovenia, determines that it is an enforceable title.

There are no legally prescribed forms for filing enforcement on the basis of an enforcement title. But necessary, the creditor must attach all evidence and other annexes to the enforcement order based on the enforcement title. It is especially important to attach the enforcement title in the original with a certificate of finality and enforceability.

It is advised, and it is usually, that the application for enforcement is submitted electronically, on the prescribed form, and then through a special court web portal, to which courts and attorneys have access. The portal is managed quite automatically –attorneys and courts in this case communicate electronically, applications and court documents are sent only electronically. In this case, the lawyer’s secure electronic mailbox is the point through which court documents are sent to the parties.Such a path of enforcement is faster and more favorable (lower court fees).

For more information about bankruptcy and enforcement in Slovenia:
https://www.ten-law.net/knowledge/bankruptcy-in-slovenia/

• 2) Civil Procedure (Litigation)

If the debtor objects to the above mentioned pre-litigation procedure, or if the creditor does not opt ​​for the pre-litigation procedure, the creditor must initiate normal civil proceedings by bringing an action. The action must cover a specific main claim, but may also include side claims. In doing so, the plaintiff must provide the facts in support of his claim, the evidence supporting these facts, and other information that each application must have in accordance with the Civil Procedure Act:

• Notice of the debtor (this notice must meet certain legal requirements) to appear in court;
• What is required (payment of the claim);
• The substantiation of this requirement;
• The evidence you have;
• Why the debtor is obliged to pay;
• Which claim for compensation of interest, extrajudicial costs and legal costs is claimed.

The plaintiff must also give a precise definition of the result he expects from the court or from the defendant (a lawsuit). When submitting the application, the party must also pay a court fee, which must be paid in full, no later than the deadline set by the court, otherwise the application is considered withdrawn. The party is not obliged to state the legal basis for his claims, but when he states it, the court is not bound by it. This means that the court can decide on the legal basis on its own discretion, even if both parties claim otherwise.

After paying the court fee, the court transmit  the lawsuit on the defendant/debtor. The debtor can then submit a defence/answer to a petition and indicate to the court why he considers that he is not obliged to pay the claim. This must be done in advance (within deadline set by the court) in writing (statement of defence), necessary before the hearing. After that exchange, an oral hearing of the case will then take place before the court. During that hearing, the judge can ask questions about statements that are not yet clear or he can examine whether the parties can still reach a settlement. The judge will then make a decision, laid down in a verdict. The verdict will be send to parties.

• 3) European Payment Order Procedure. 

Since 2008, it has been possible within the European Union to have an undisputed monetary claim on a foreign debtor established by a judge in the form of a European Payment Order. The procedure is as follows:

• The standard form must be submitted to the competent court. Which court is competent is included in art. 6, paragraph 1 EBB Regulation;
• The judge decides without summoning the debtor;
• If the European Payment Order is issued, it will be served on the debtor;
• The European Payment Order states that the debtor must make payment within 30 days or can file a defence;
• If he wishes to defend himself, this European Payment Order procedure will shift to a “normal” civil procedure;
• If there is no payment, but it is not indicated in time that a defence will be presented, the European Payment Order will be declared enforceable.
• This declaration of enforceability should be sent to the debtor together with the European order for payment. Together they are the necessary enforceable title to proceed to execution.
• Therefore, the procedure is not appropriate when it concerns a disputed claim.

Execute

As soon as the court gives its verdict, there is an enforceable title, and the third phase begins. The verdict gives the debtor the opportunity to pay the amount within a few days by means of serving of the judgment. Only after this term of command has expired can the plaintiff proceed to execution and take further steps. Incidentally, it is also possible for the judge to give explicit permission to proceed immediately to execution.

Any prejudgment imposed attachment is converted into an enforcement order and, if necessary, additional executory attachment can be made on the assets of the debtor.

The debtor can stop the execution, but for very limited reasons.

2. Are there options to “freeze” or secure debtor’s redress objects?

 The Enforcement and Insurance Act defines preliminary injunctions and interimin junctions as temporary and protective measures. As (more permanent) protective measures, in terms of compulsory insurance, the Enforcement and Insurance Act provides insurance by establishing a lien on real estate, insurance by establishing a lien on movable property and insurance by establishing a lien on a business share. Compulsory precautionary measures may be proposed by the creditor on the same basis as enforcement, ie on thebasis of an enforceable title, unlike preliminary orders and interim orders, which are measures of a temporary nature and may be proposed under the conditions presented below.

Preliminary orders: the court issues a preliminary injunction based on a decisionof a domestic court or other authority on a monetary claim that is not yet enforceable if the creditor demonstrates a probable risk that the claim will otherwise be prevented or made significantly more difficult.

Interim orders are time-limited precautionary measures aimed at maintaining the existing or establishing a new temporary situation with the aim of enabling later effective execution of the creditor’s claim (orders of an insurance nature) or to prevent serious adverse consequences and impending violence (orders of a regulatory nature).

According to the law, there are some differences between orders for securing monetary receivables and orders for securing non-monetary receivables.

3. Do you need to be assisted by an attorney at law?

It is not obligatory, butdebtcollectionthroughanattorney at law is usualandmuch more effective.

4. What are the costs of the procedure and are they eligible for reimbursement ?

Extrajudicial phase
If you are a business entity and another business entity owes you payment for the goods or services, you are entitled to charge him an additional € 40 as a lump sum to reimburse the costs of recovery. You do not have to prove that you already have or will actually incur any recovery costs. If you later actually incur recovery costs (eg court fees or legal fees related to enforcement), you are also entitled to reimbursement of these costs. This right of the creditor shall lapse within three years from the date of the delay.

Judicial phase
During the judicial phase, you should take into account the following costs / fees : attorney at law fee, court fee and fee for winning party’s attorney at law.

The costs depend on the course of the procedure, in particular on the number of applications and court hearings.The costs of the proceedings under the law are shown below, but the client and the attorney may agree otherwise, other amounts, but this does not affect the amount of reimbursement of costs for the attorneyof the other (winning) party.

Rates for execution procedure (just initial application, some examples)

* a low networth person can apply for free legal aid, offered by state (attorneys are paid by state)

Rates for civil procedures (eg3 aplications, 3 hearings,some examples)

* a low networth person can apply for free legal aid, offered by state (attorneys are paid by state + exemption from paying court fees)

Often various documents are required for a procedure. Just think of extracts, documents from the Land Registry or Chamber of Commerce, but also medical documents in personal injury cases, cost of seizure. Some agencies do not provide these documents free of charge. The costs for whole procedure are advanced by the client and at the end imposedfor payment to the party, which lose the case.

5. What is the term of the procedure?

Extrajudicial phase
This phase lasts as long as the creditor wishes in the period of the statute of limitations. However, he must take into account the reasonable period that he must give the debtor in his summons so that the debtor is actually in default.

Judicial phase
A civil procedure in Slovenia takes an average 2- 3 years. If it is a complicated case (for example, the judge wishes to hear witnesses or requests further evidence in some other way), a procedure can easily take up to 5 years. Of course, after a civil procedure there is also the possibility of appeal.

– European Payment Order Procedure
If the debtor does not indicate that he disputes the claim, this procedure will not take much longer than the 30 days in which the debtor can respond.

Execution phase
The bailiff must take into account certain deadlines when executing an enforcement order. The period can vary from 1 to 6 months. For example, the term of a public foreclosure sale of a vehicle is shorter than the term of a public foreclosure sale of real estate.

For further information you can contact our office +386 059 365 710 or info@gsp.si