The Act on the Suspension of the Proceedings against the Members of the Struck-off Companies entered into force

With the Act on the Suspension of the Proceedings against the Members of the Struck-off Companies (ZPPDID) entering into force all civil, administrative and enforcement proceedings in which creditors made claims against members of the struck-off companies on the basis of the Financial Operations of Companies Act (ZFPPod) and Financial Operations, Insolvency Proceedings and Compulsory Winding-up Act (ZFPPIPP) were suspended ex officio. The Financial Operations of Companies Act (ZFPPod) provided a measure, according to which inactive companies were to be struck-off from the court register without winding-up, while providing at the same time and in order to protect creditors that the members of those companies would assume joint and several liability for the former companies’ debts. In two constitutional decisions the Constitutional Court mitigated the mentioned statutory measure when it decided that only “active” members of the company may be held liable for the company’s debts, i.e. those members who actually exerted influence over company’s operations. Based on the said statutory measure a little bit less than 18,000 companies were struck-off, and approximately 50,000 individuals became personally liable for the companies’ debts.

Act on the Suspension of the Proceedings against the Members of the Struck-off Companies (ZPPDID) provides that if the European Court of Human Rights (ECHR) finds in the operative part of the judgment in the case of Lekić v Slovenia (no. 36480/07) that the Republic of Slovenia violated human rights by adopting the said legislation the legislator will pass the law governing the legal consequences of the ECHR judgment. However, if the ECHR finds that Slovenia has not violated the human rights the suspended proceedings will resume.

Let us recall that the case Lekić v Slovenia concerns a situation where the member of a struck-off company (Ljubomir Lekić) became personally liable for the debts of the struck off company. Mr Lekić alleged that the striking-off of company had constituted a disproportionate interference with his right to peaceful enjoyment of his possessions, as it had meant that the company in which he was a member had ceased to exist; furthermore, he had become personally liable for the company’s debts. In the judgment of 14 February 2017 the Chamber of the ECHR held that given the wide margin of appreciation which the Contracting States enjoy in matters of economic policy systems and given that the objectives sought by the legislative measure were the protection of creditors and providing the security of legal transactions of the companies, that the measure complained of did not represent an excessive individual burden for the applicant in the particular circumstances of the present case and that accordingly Slovenia has not violated the human rights by adopting the said measure. It was also relevant that Ljubomir Lekić was an active member and the finding might have been different in case of the passive member.

The Act on the Suspension of the Proceedings against the Members of the Struck-off Companies entered into force

The Act on the Suspension of the Proceedings against the Members of the Struck-off Companies entered into force

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