Area: Delovno pravno
Competent authority: MGRT, MP
EZU URL: .nan
Initiative ID: 839
Initiative accepted and completed: '2017-11-15'
Initiative classified in EZU: .nan
Initiative forwarded in response: '2017-10-12'
Initiative published: '2017-10-12'
Initiative submitted: '2017-10-12'
Response from the competent authority: 'Reply from the Ministry of Economic Development
  and Technology. US, 82/13, 55/15 and 15/17, hereinafter referred to as: ZGD-1),
  a company may be dissolved under the summary procedure without liquidation if all
  shareholders (or members if it is a limited liability company) propose to the registration
  authority that the company be deleted from the register without liquidation and
  attach to the proposal a resolution on dissolution under the summary procedure and
  a notarised declaration by all shareholders (members) that all liabilities of the
  company have been paid, that all relations with employees have been settled and
  that they assume the obligation to pay any remaining liabilities of the company.
  The decision on the summary winding-up of the company pursuant to Article 426 of
  the Companies Act shall contain the name and registered office of the company, the
  authority which adopted the decision on the winding-up, the fact that the winding-up
  is a summary winding-up, the number of shareholders (members) and their personal
  names and their places of residence, and a proposal for the division of the assets.Pursuant
  to Article 425(2) of the Companies Act, creditors may assert claims against shareholders
  (members) who have given a declaration of assumption of the obligation to pay any
  remaining liabilities of the company for two years following the publication of
  the company''s cancellation from the register.We would like to point out at the
  outset that by including notaries in the proceedings for the winding-up of a company
  under the summary procedure without liquidation, the legislator intended to ensure
  that the signed declarations of the shareholders are true, that the notaries remind
  the shareholders that they must propose and arrange for the transfer of assets after
  the winding-up to the owners named in the proposal/agreement, and, above all, that
  the notaries remind the shareholders of the assumption of joint and several liability
  for liabilities of which they are unaware, but which the company or the management
  has created, but not discharged.The role of the notary and the notarial formality
  of deeds is provided for in the Germanic legal system, which is also the basis for
  the Slovenian legal order, where it is necessary to protect certain interests, such
  as those of the shareholders, creditors and the public interest. The role of the
  notary in the field of company law is advisory, explanatory and cautionary.In the
  case of the summary dissolution of a limited liability company, it is not only a
  matter of the members adopting a resolution on the summary dissolution of the company
  and making a declaration that all the company''s liabilities have been paid, that
  all the relations with the employees have been settled and that they assume the
  obligation to pay the company''s residual liabilities, if any.The notary''s role
  in the field of company law is advisory, explanatory and cautionary. It is also
  necessary to settle the property relations between the members after the winding-up.
  The resolution should set out what assets the company has at the time of the resolution
  and what will happen to those assets when the company is wound up. The assets must
  be distributed. Once the company is wound up, transfers of title to movable and
  immovable property must be made, cash must be distributed and the company''s transaction
  account must be closed.Given that a company almost always has assets at the time
  of the decision to wind it up without liquidation, the members should be reminded
  that they must agree in the resolution to accept the agreement/proposal on the distribution
  of the assets that will remain after the winding up of the company. The notary shall
  remind the members that they must regularise the ownership of the assets after the
  winding-up of the company, thus preventing the subsequent appearance of assets without
  an owner. The notary has the relevant legal skills to deal with property relations,
  which are usually not available to the staff/clerks at the Business Entity Support
  Points.We would further point out that assuming personal liability for the payment
  of any residual liabilities of companies in the event of winding-up without liquidation
  poses a significant risk. In these cases, it is very important that the shareholder
  who assumes any liabilities by declaration is warned of the risk and the legal consequences.
  By informing the shareholder of the risk and warning him that by making the declaration
  he is also assuming any residual liabilities that may arise after the winding-up,
  the notary can prevent many a premature or less well-considered decision.In addition
  to the advisory, explanatory and cautionary functions, the notary''s assistance
  is used to exercise a two-step control in registration procedures, with the notary
  acting as the first control point and the registry court as the second and final
  control point. The advantage or consequence of the two-stage control is that the
  registration courts are relieved of the burden of checking the correctness of the
  filing of the petitions and the content of the documents annexed to the petition.When
  the notary files the petitions for the cancellation of the company, he is also considered
  to be the proxy of the shareholders. For each resolution served on him electronically
  in the winding-up proceedings, he shall verify that the registry court has correctly
  entered the information required by the application. In the case of the proposed
  arrangement, the party itself would receive the orders and decisions directly. In
  the case of service by post, service by return post would be required, incurring
  costs which would be borne by the budget of the Republic of Slovenia. In addition,
  the staff/clerks at the Business Entity Support Points usually do not have the appropriate
  skills to legally follow the winding-up procedure.The cost of a notary in the case
  of a summary winding-up of a company depends on the amount of the share capital
  of the company. For a share capital of EUR 7,500, the cost is approximately EUR
  110 excluding VAT.The notary''s service includes legal advice, drafting of documents,
  filing of motions, review of court orders and sending of orders to the parties.With
  regard to the costs, it should also be clarified that costs are also incurred in
  connection with the operation of the Business Entity Support System, but these costs
  are not charged to the users of the system''s services, but to the budget of the
  Republic of Slovenia and are indirectly borne by the taxpayers.Finally, the petitioner
  submits that, due to the existing regime, many shareholders do not decide to initiate
  the procedure for winding up the company under the summary procedure, but instead
  have the company removed from the court register without liquidation in accordance
  with the provisions of the Act on Financial Management, Insolvency Proceedings and
  Compulsory Winding-up (Official Gazette of the Republic of Slovenia, No. 13/14 -
  officially consolidated text, 10/15 - corrected version), which provides for the
  following, The Ministry would like to point out with regard to the cancellation
  without liquidation under the ZFPPIPP that such cancellations, unlike the "voluntary"
  institute of winding up a company under the summary procedure under the ZGD-1, are
  of a "coercive" or "punitive" nature. Instead of the shareholders of the company,
  the State acts as the deleter from the register of companies without assets, which
  are not in business, etc., while the shareholders may be subject to restrictions
  on the establishment of companies and sole proprietors pursuant to Article 10a of
  the ZGD-1.In the light of the foregoing, the Ministry of Economic Development and
  Technology proposes that the regulation of the institute not be amended. In our
  view, it is in the public interest for the State to ensure a minimum level of protection
  for shareholders and other stakeholder groups, and in particular for the law of
  less skilled individuals, and consequently to prevent possible abuses and detriments.'
Text file: 839.txt
Title: Free company dissolution at a VEM point
URL: https://www.stopbirokraciji.gov.si/pobuda/?st=839
