	Litigation Arbitration & Dispute Resolution EU Directive Actions Guide
	Slovenia
	(Europe) Firm Šelih & Partnerji Law Firm Contributors Helena Butolen Updated 10 Jan 2024
Representative Action Mechanisms: Does a collective action mechanism already exists in your jurisdiction, and if so, is the Directive implemented as a part of or as a separate mechanism?	In Slovenia, a collective action mechanism already exists since the adoption of the Collective Actions Act^[1] which was adopted in 2017 and entered into force in 2018. Slovenia implemented the Directive (EU) 2020/1828 (the "Directive 2020/1828") as a part of this mechanism, i.e. by adopting an amendment to the Collective Actions Act on 14 December 2023 (the "Amendment")^[2]. The Amendment will enter into force 30 days after being published in the Official Gazette of the Republic of Slovenia on 26 January 2024. The collective action mechanism provides for a judicial procedure for reparation of damages in cases of mass harm due to a breach of rights from civil, commercial and labor law relationships. In most cases, district courts at the seat of the higher courts have jurisdiction to decide on a collective action and a proposal to confirm a collective settlement. In cases where a labor court in an individual labor dispute would have jurisdiction, a competent labor court has jurisdiction to decide also on a collective action (Article 6 of the Collective Actions Act). [1] Official Gazette of the Republic of Slovenia, no. 55/17 (the “Collective Actions Act”). [2] Official Gazette of the Republic of Slovenia, no. 133/23 (the “Amendment”).
Claims which can be brought in a Representative Action: Which claims can be brought? Which redress measures are available other than compensation?	There are three types of collective procedures available in Slovenia: 1. Collective action for damages (Chapter 3 of the Collective Actions Act) / redress measures On this basis, the qualified entity can request compensation for loss in favor of all persons who have been harmed in the case of mass harm, regardless of the legal qualification of the claim, e.g. as compensation, enrichment or fulfillment (Article 3, point 1 of the Collective Actions Act). This institute therefore covers not only claims for damages in the narrower sense but also other levy claims. 2. Collective action for injunctive measures (Chapter 4 of the *Collective Actions Act) On this basis, the qualified entity can request cessation of illegal conduct (Article 3, point 2* of the *Collective Actions Act), together with prohibition of similar conduct in the future. The Court may also order the publication of the judgment at the defendant’s expense or the publication of a correction of the inadmissible advertising if it considers that this contributes to mitigating or eliminating the harmful consequences of the infringement. 3. Collective settlement* (Chapter 2 of the *Collective Actions Act) A written agreement for compensation of collective damages, caused in the case of mass harm, which the parties propose to the Court for approval, and which is effective and binding upon the Court’s approval (Article 3, point 13* of the Collective Actions Act). Collective actions (both, for damages and injunctive measures) can be brought to enforce (Article 2/1 of the *Collective Actions Act): consumer claims against companies due to breach of consumer rights; claims due to violations of the provisions on the prohibition of restrictive practices from Articles 5* and 8 of the Slovenian Prevention of Restriction of Competition Act^[3] or 101 and 102 of the Treaty on the Functioning of the European Union^[4]; claims relating to the violation of trading rules on organized markets and prohibited market abuse practices in accordance with the law governing the market of financial instruments; workers’ claims which can be asserted by an independent lawsuit in an individual labor dispute, as defined by the law governing the procedure before labor courts; claims from tort liability for causing an environmental disaster, as defined by the law governing environmental protection. In the area of legal protection against discrimination, only an injunctive collective action is admissible (Article 2/2 of the *Collective Actions Act). [3] Official Gazette of the Republic of Slovenia, no. 130/22.* [4] Official Gazette of the EU, no. C 326/47 dated 26 October 2012.
Costs: To what extent must the unsuccessful party pay the costs of the proceedings, must they pay all costs or only a part of them, and if so, which part?	The *Collective Actions Act* determines the principle of success (loser pays principle) regarding costs. The unsuccessful party must reimburse the other party all costs necessary for the procedure (Article 60/1 of the Collective Actions Act). Unlike in the individual dispute procedures, where these costs are not recognized, in collective disputes the necessary costs incurred by the applicant before the filing of a lawsuit for activities related to organizing and informing the members of the group about the intention to file a collective action, are also considered the necessary costs of the procedure and must be reimbursed on success basis (Article 60/2 of the *Collective Actions Act*).
Transitional Law: Are there any peculiarities regarding national transitional provisions in relation to Article 22?	The Amendment determines that the procedures that started before it entered into force and have not yet been concluded with a final decision, continue and conclude according to the provisions of the act in force before the enforcement of the Amendment (which transposed the Directive 2020/1828), i.e. according to the *Collective Actions Act* from 2017.
Opt-in vs opt-out: How are opt-in/opt-out mechanisms regulated (in particular, whether in the context of an order for redress – both domestic and cross-border – claims are permitted on an opt-in or an opt-out basis)?	The Court decides which mechanism (i.e. opt-in or opt-out) will be used in each individual procedure. When deciding on which mechanism to use in the procedure, the Court takes into account all the circumstances of the specific case, especially the value of individual claims of group members and the circumstances that are essential for the approval of the collective action for damages (Article 30/1 of the Collective Actions Act). There are some exceptions in which only opt-in can be used (Article 30/2 and 30/3 of the Collective Actions Act): if at least one of the claims in the collective action for damages relates to the payment of compensation for non-pecuniary damage; or if, according to the assessment contained in the lawsuit, at least ten percent of the group members claim payment exceeding EUR 2,000. In addition, only opt-in can be used for persons who do not have a permanent residence or registered office in the Republic of Slovenia at the time of the issuance of the decision on the approval of the collective action for damages.
Qualified Entities (QEs): What criteria apply to the designation of QEs, with special regard to the designation of QEs for the purpose of bringing domestic representative actions?	In principle, the Collective Actions Act grants procedural standing to file a collective action or a proposal to confirm a collective settlement (Article 4/1 of the *Collective Actions Act) to: a legal entity under private law, which carries out a non-profit activity and where there is a direct connection between its main goals of operation and the rights that are allegedly violated and in connection with which a lawsuit is filed, and to the State Attorney’s Office – but not in a collective procedure in which the Republic of Slovenia appears as an opposing party. The legal entity from point i) above must publish on its website information on sources of its general financing, its organizational structure, membership structure, the purpose of its establishment and activities. There are also some peculiarities: Collective action for injunctive measures: in addition to those mentioned above, if a state authority has been established to ensure the special protection of certain groups or interests, it can also file such collective action (Article 47/2* of the Collective Actions Act). Collective action for injunctive measures in the field of discrimination: such collective action can only be filed by a defender of the principle of equality or a non-governmental organization that has a recognized status of acting in the public interest in the field of protection against discrimination or protection of human rights in accordance with the law regulating protection against discrimination (Article 57/2 of the Collective Actions Act). The new Article 4a of the Collective Actions Act stipulates that an action for the collective protection of consumer interests or such a proposal to confirm a collective settlement may, in addition to generally qualified entities, in Slovenia also be filed by an entity that represents the interests of consumers and which is entered on the list of qualified entities for filing of consumer collective actions in another member state of the European Union, if its founding purpose for each individual case justifies the filing of a collective action or proposal to confirm a collective settlement. As regards the filing of consumer collective actions in other EU member states by Slovenian entities, the new Article 57.a determines that such actions can be filed by a legal entity established under private law with a seat in the Republic of Slovenia which is entered on the list of qualified entities for filing of consumer collective actions in another member state of the European Union (please see in more detail our response to "Cross-Border Actions" below).
Class Criteria/Certification: What is the class criteria/certification stage applicable to representative actions, including provisions, if any, that give substance to the requirement “to dismiss manifestly unfounded cases at the earliest possible...	The Court takes into consideration a collective action for damages if (Article 28/4 of the Collective Actions Act): the collective action asserts claims of the same type, made on behalf of an identifiable group of persons, which concern the same, similar or related factual or legal issues, relate to the same case of mass damage and are suitable for consideration in a collective procedure; common legal and factual issues for the entire group prevail over issues that relate only to individual members of the group; the group is so numerous that assertion of claims through separate lawsuits or a different form of association of its members, e.g. joint litigation or consolidation of litigation, would be less effective than filing a collective action for damages; the applicant fulfils the conditions regarding representativeness determined in the Collective Actions Act; the claim asserted by the collective action for damages is not manifestly unfounded; the conditions regarding third-party litigation funding (please see our response to "Third-Party Litigation Funding") are met; and the Court considers that a possible payment agreement with the attorney-at-law is reasonable and in line with the provision that payment to the attorney-at-law may, upon agreement, be higher than the Attorney-at-law Tariff or determined as a maximum of 15% of the amount awarded by the Court. When the Court assesses that the condition of reasonable premium in cases of third-party funding is not met, it urges the applicant to correct or provide a new agreement on costs and financing of the procedure within the set deadline. If other conditions (please see conditions in "Third-Party Litigation Funding") are not met, the Court urges the applicant to ensure fulfillment of all conditions within a given deadline. When the Court assesses that the payment agreement with the attorney-at-law is not in line with the set conditions, i.e. reasonable and in line with the determined maximum of the amount awarded by the Court, it urges the applicant to provide a corrected or a new agreement with the attorney-at-law within a given deadline. When deciding on the suitability of claims for consideration in the collective procedure, the Court takes into account (Article 28/5 of the *Collective Actions Act*): if the collective procedure enables the effective resolution of common legal and factual issues; what are the costs and benefits of continuing the collective action procedure; if the group members have filed any independent actions relating to these or similar claims; what are the size and characteristics of the group; what are the possibilities of determining group members; if the claims are suitable for the award of aggregate compensation; if alternative dispute resolution or other dispute resolution options are available.
Third-Party Litigation Funding: Please describe how third-party funding is regulated, with special regard to funding of representative actions for redress measures. Can the court order the representative organization to disclose the funding agreem...	In the case of collective actions, the applicant must publicly reveal and report to the Court the source of the funding that will be used for financing the court procedure (Article 59 of the *Collective Actions Act). The Collective Actions Act* does not explicitly require disclosure of the funding agreement; therefore, in this respect, the question might arise of how would the Court in practice effectively review the above requirements without the revelation of a funding agreement.^[5] However, the requirement to disclose the funding agreement indirectly stems from a provision of the Collective Actions Act that upon the suggestion of the applicant at disclosure of the funding agreement, the Court will redact the part of the funding agreement that contains business secrets, if it is not necessary for review of fulfillment of conditions to use financial assets provided by a third party. In the case of third-party funding of a collective action procedure: there may be no conflict of interest between the third party and the applicant and the members of its group; the third party may not finance a collective action against the defendant, who is its competitor or against a defendant on which it is dependent; the third party must have sufficient resources to meet its financial obligations to the applicant who initiated the collective action procedure; the applicant must demonstrate that it has sufficient resources or adequate security to reimburse the other party's costs in the event of failure to succeed in the collective action proceedings; the agreed premium must be reasonable. In assessing whether the agreed premium is reasonable, the Court takes into account especially the complexity of the dispute, the extent of risk assumed in relation to costs and complexity of the dispute, and the rights of group members to full compensation. The third-party, funding the collective action, may not have a decisive influence on the procedural decision of the applicant, including settlement decisions if they are not beneficial to the collective interests of group members. [5] B. Brežan, M. D. Osojnik, Financiranje stroškov pravdnega postopka s strani tretjih oseb (en. Third Party Litigation Funding), Pravna praksa, št. 41-42, 2020, p. 18-19; M. Djinović, Stroški postopka in financiranje kolektivne tožbe po Zakonu o kolektivnih tožbah (en. Costs of the procedure and third party litigation funding according to the Collective Actions Act), Pravni letopis, št. 1, 2022, p. 117.
Redress Settlements: How are settlements regulated, with special regard to “rules according to which individual consumers concerned by the action and by the subsequent settlement are given the possibility to accept or to refuse to be bound by sett...	Collective settlement is regulated in the second chapter of the Collective Actions Act. The procedure on confirmation of a collective settlement is initiated upon a mutual proposal by the parties to the collective settlement. The *Collective Action Act* (Article 13) also determines its mandatory elements, which are as follows: information on parties to the collective settlement and facts from which it can be assumed that the qualified entity is representative; description of mass harm, subject of collective settlement; description of the group and optional sub-groups; assessment of the number of group members, also within optional sub-groups, together with the basis for such assumption, and in the appendix a list of known members of the group; the chosen mechanism of the conclusion of collective settlement (opt-in or opt-out) and the reason for this decision; the amount of aggregate compensation, also within optional sub-groups, or the individual amount of compensation that each member of the group will receive upon fulfillment of conditions; reasoning on how the compensation from the previous point was calculated; the means of notifying members of the group; the proposed wording of the notice to group members that has to be published; if the collective settlement is concluded in line with the opt-out mechanism: the deadline within which the members of the group, included in the settlement, have to enforce their request for payment; if the collective settlement is concluded in line with the opt-in mechanism, proof has to be enclosed to the declaration on inclusion; rules on how the request for payment is enforced, how the validity of a claim is assessed and the mechanism for out-of-court dispute settlement upon denial of payment; commitment when the payment is carried out to a trust account with a notary public. Upon the Court’s decision that the proposal to confirm a collective settlement is permissible and complete, the Court notifies the group members about this. The known members of the group are notified by regular mail to their last known address and, if possible, with notices to their e-mail addresses. If, due to the very large number of injured parties or where this would entail disproportionate costs, it is not possible to inform all members of the group, the Court shall decide that the parties to the collective settlement are obliged to ensure that they are informed by publication by other appropriate means, such as by publication or repeated publication in daily newspapers, by electronic media, or by means of existing or to be established websites. Members of the group and qualified entities, not parties to the collective settlement, may submit to the Court, within the set deadline and extent, their written opinions. The court rejects the conclusion of a collective settlement, if: the qualified entity is not representative to secure interests of persons, for the account of whom it has concluded the collective settlement; the amount of compensation is not reasonable, taking into account the extent of damages, simplicity of repayment, cause and responsibility for damages, and also that the settlement is concluded with mutual concessions, with uncertainty and costs of the procedure on the other hand; the deadline for individual payment requests is obviously unreasonable; the costs to be paid to the opposite party go beyond the actual costs incurred by the party; there is not enough guarantee that the agreed amount will suffice to repair damages to all injured parties; the settlement does not contain an independent appropriate mechanism to assess if claims are justified, including an independent mechanism for out-of-court dispute resolution in this respect; interests of persons, on the account of whom the settlement was concluded, are not secured enough. Before the Court rejects the proposal for collective settlement, it may give the parties an opportunity to correct or change it, offering them support and help. If the Court does not reject the proposal for collective settlement, it issues a decision confirming it. After the Court has confirmed the collective settlement, it may set a deadline not shorter than 30 days and not longer than 90 days, wherein the injured party may let know the Court whether they wish to be included or excluded from the impact of the settlement (second paragraph of Article 18). The settlement can be concluded in two ways (Article 20): according to the system of exclusion (opt-out): will bind all parties except those who (i) explicitly stated that they wish to be excluded, and (ii) did not notify the Court that they wish to be included within the given deadline if they do not reside in the Republic of Slovenia; according to the system of inclusion (opt-in): will bind only the parties that explicitly state that they wish to be included. It will be up to the Court in each individual proceeding to decide which mechanism to use, taking into account all circumstances of the case.
Public Information/Database of Representative Actions: How are the publication of information and database of representative actions regulated, with special regard to any requirement of judicial vetting (e.g. court-approved description of the acti...	The so-called register of collective actions is regulated in Article 10 of the *Collective Actions Act* and has been established and maintained by the Supreme Court of the Republic of Slovenia. The register is further regulated by the Rules on the Register of Collective Actions^[6]. The following data and documents shall be processed and published in the register of collective actions: the fact that a collective action has been filed, the parties to the proceedings, the alleged mass injury to which the action relates; the collective action with attachments, excluding personal data of known members of the group; the decision granting the collective action and the date on which that decision has become final; the notifications to members of the group / injured parties on granting of collective settlement, approval of collective action, and on final judgment; hearings and invitations to submit written observations; the judgment or other decision concluding the collective action proceedings; the number of members included or excluded; the collective settlement submitted to the Court for approval; the approved collective settlement or the decision on termination of the procedure for approval of the collective settlement; information on the mechanisms available to obtain compensation, including out-of-court mechanisms; the decision on approval of the final report, without the personal data of the injured parties; other information if the Court so decides. The register is accessible to everyone free of charge, on the website of the judiciary. In addition to publishing in the register, the applicant must ensure that it has published on its website information on the status of the collective procedure or of the procedure on the basis of the proposal to confirm a collective settlement, as well as the outcome of either the collective action or collective settlement. [6] Official Gazette of the Republic of Slovenia, no. 26/2018.
Discovery/Disclosure: Are there any special discovery/disclosure rules applicable to representative actions, or collective (non-unitary) actions in general? If there are no such rules either, please briefly refer to the general discovery/disclosur...	Save as otherwise mentioned below, the Collective Actions Act does not contain any specific rules regulating the disclosure of evidence and information; therefore, in this regard, in principle general rules of the Slovenian Contentious Civil Procedure Act (“ZPP”)^[7] apply. According to Article 227 of the ZPP, the Court may, at the request of a party making a reference to a certain document that lies in the control of the opposite party, order the opposite party to submit a certain document to the Court within a given deadline. The request has to be specified and must include the name or type of the document, a statement of fact to be proven by the document, a description of the content of the document, as well as a statement of facts from which it can be concluded that the document is in possession of the other party. If the party in possession of the document refuses to comply with the Court order or denies, against the belief of the Court, that the document is in his possession, the Court may consider that the document exists and that its contents are as alleged by the other party. It may not, however, impose a pecuniary penalty upon the party. According to Article 228 of the ZPP, the Court may, at the request of a party to the proceeding, order also third parties to produce a document. The request of a party must include the specification/type of the document, the fact that is to be proven by the document, a specific description of the content of the document and facts, on the basis of which it can be concluded that the document in possession of a third party. The Court order to submit a certain document may be enforced ex officio in line with the rules of the Slovenian enforcement proceeding. In this respect, also pecuniary penalties are possible. In line with the Directive 2020/1828 (Article 19), member states may impose pecuniary penalties for the cases of disclosure. In this respect, the Amendment introduced a new Article 9.a to the *Collective Actions Act, determining that if a party in possession of a document refuses to comply with the Court order requiring to produce it, or if the party, against the belief of the Court, denies that the document is in its possession, the Court ex officio* enforces the final Court order on production of a document in accordance with the rules of enforcement procedure. This consequence therefore gives the Court a new legal basis in collective action proceedings to enforce the order for producing a document ex officio in line with the rules of enforcement procedure. This provision excludes from use the provision of Article 227 of the *ZPP* (applicable in case of individual actions) that does not allow for enforcement in such cases. Article 182.a of the ZPP enables also filing of the so-called “lawsuit by stages,” under which the applicant can file two claims against the same defendant and claim disclosure of information and/or evidence by the first claim, and reserve the substantiation of the second (main) claim (i.e. stating relevant facts and submitting supporting evidence related to the second claim) for the next stage, i.e. for after the applicant will have succeeded with its first claim and received the sought information and/or evidence from the defendant. However, the requirement for filing such a lawsuit is that the party has to have a claim for disclosure of documents, inspection of documents or disclosure of information on the basis of substantive law, either by contract or any applicable law^[8]. Namely, the lawsuit by stages has been introduced with the purpose of solving the problem of informational asymmetry between the parties when a party already has a claim for disclosure of documents on the basis of substantive law. [7] Official Gazette of the Republic of Slovenia, no. 73/07 - Official Consolidated Text, 45/08 - ZArbit, 45/08, 111/08 – Decision of Constitutional Court (“DCC”), 121/08 - DCC, 57/09 - DCC, 12/10 - DCC, 50/10 - DCC, 107/10 - DCC, 75/12 - DCC, 76/12 - corr., 40/13 - DCC, 92/13 - DCC, 6/14, 10/14 - DCC, 48/14, 48/15 - DCC, 6/17 - DCC, 10/17, 32/18, 16/19 - ZNP-1, 70/19 - DCC, 1/22 - DCC, 3/22 - ZDeb) [8] Court decisions ref. no. I Cpg 135/2022 dated 15 December 2022, ref. no. I Cpg 37/2023 dated 1 February 2023.
Cross-Border Actions: Are there any procedural mechanisms and other requirements for cross-border representative actions?	Since the Amendment, collective actions for the protection of consumers’ interests may be filed in Slovenia by an entity entered on the list of qualified entities for filing consumer collective actions in another member state of the European Union (Article 4.a), as well as it may be filed in another member state of the European Union by a legal entity established under private law with a seat in the Republic of Slovenia which is entered on the list of qualified entities for filing of consumer collective actions in another member state of the European Union (Article 57.a). Filing in Slovenia A cross-border consumer collective action may be filed in Slovenia by an entity that represents the interests of consumers and is entered on the list of qualified entities for filing consumer collective actions in another member state of the European Union if its founding purpose for each individual case justifies the filing of a collective action or proposal to confirm a collective settlement. In cases where the defendant shows a reasonable doubt that the qualified entity fulfills conditions to file a consumer collective action in another member state, the Court checks whether the entity is included in the list, or makes inquiries via a national contact point. Such a national contact point is obliged to cooperate with the Court and is established in line with Article 57.c of the *Collective Actions Act* – in Slovenia, the Ministry of the Economy, Tourism and Sport is responsible. Filing in another member state of the European Union A consumer collective action in another member state can be filed by a legal entity governed by private law with its registered office in the Republic of Slovenia, which is entered on the list of entities qualified to bring consumer collective actions in another member state. The list is maintained by the Ministry of the Economy, Tourism and Sport, and will be published on the central website of the State Administration. Such a list has not yet been established. The legal entity, that wishes to be entered on the list, must meet the following conditions: demonstrated 12 months of activity in the field of protection of consumers' interests prior to the request for entry on the list; legitimate interest in the protection of consumers interests in line with its founding purpose; engagement in a non-profit-making activity in the field of consumer protection; not subject to insolvency proceedings; independency and no influence from persons other than consumers, and having procedures in place to that end preventing both influence and conflict between its own interests, the interests of its own financing providers and those of consumers; by all appropriate means in plain and intelligible language published information, in particular, on its website, showing that it meets the conditions summarized above, and information on its sources of funding in general, its organizational and administrative structure, membership structure, founding purpose and activities. The entity qualified to bring consumer collective actions in another EU member state shall be removed from the list upon its request or if the Ministry which issued the decision on entry into the list establishes that the above conditions are no longer fulfilled.
Cy près Awards: Are there any rules “on the destination of any outstanding redress funds that were not recovered within the established time limits”?	In case of collective actions for damages, after the court-set deadline to claim payment in the opt-out system (not shorter than 90 days and not longer than 6 months), after repayment of injured persons and after payment of costs of the procedure, any outstanding funds are returned to the defendant (Article 46 of the *Collective Actions Act*). In the case of collective settlement, determining aggregate compensation, the part of damages that has not been paid to individual injured parties after the deadline set in the settlement is returned to the person who was obliged to pay (i.e. the defendant).
Other: Please provide any further comment that you deem worthy of note.	Claims, subject to a collective action or proposal to confirm a collective settlement, will not become statute-barred during the course of the procedure. The statute of limitations will not be met earlier than 30 days after the conclusion of this procedure. The Amendment also adds the provision that a statute of limitations for claims for the protection of rights arising out of legal relations between persons on the same basis as the collective action for injunction measures does not run during these proceedings. Another additional note-worthy amendment brought by the transposition of Directive 2020/1828 is a provision on payment of the Attorney-at-law’s fees. The Attorney-at-law may agree to payment higher than the Attorney-at-law Tariff or for payment in the maximum amount of 15% of the amount awarded by the Court, if such an agreement is reasonable and taking into account the criteria determined above (please see in "Third-Party Litigation Funding" on reasonable premium, Article 59 of the Collective Actions Act); namely, especially the complexity of the dispute, the extent of risk assumed in relation to costs and complexity of the dispute, and the rights of members of the group to full compensation. If the Attorney-at-law cannot receive payment from the repaired costs of the procedure by the opposite party, the individual amounts, to which members of the group are entitled, will proportionally decrease.

Litigation Arbitration & Dispute Resolution EU Directive Actions Guide

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Representative Action Mechanisms: Does a collective action mechanism already exists in your jurisdiction, and if so, is the Directive implemented as a part of or as a separate mechanism?

In Slovenia, a collective action mechanism already exists since the adoption of the Collective Actions Act^[1] which was adopted in 2017 and entered into force in 2018. Slovenia implemented the Directive (EU) 2020/1828 (the "Directive 2020/1828") as a part of this mechanism, i.e. by adopting an amendment to the Collective Actions Act on 14 December 2023 (the "Amendment")^[2]. The Amendment will enter into force 30 days after being published in the Official Gazette of the Republic of Slovenia on 26 January 2024.

The collective action mechanism provides for a judicial procedure for reparation of damages in cases of mass harm due to a breach of rights from civil, commercial and labor law relationships. In most cases, district courts at the seat of the higher courts have jurisdiction to decide on a collective action and a proposal to confirm a collective settlement. In cases where a labor court in an individual labor dispute would have jurisdiction, a competent labor court has jurisdiction to decide also on a collective action (Article 6 of the Collective Actions Act).

[1] Official Gazette of the Republic of Slovenia, no. 55/17 (the “Collective Actions Act”).

[2] Official Gazette of the Republic of Slovenia, no. 133/23 (the “Amendment”).

Claims which can be brought in a Representative Action: Which claims can be brought? Which redress measures are available other than compensation?

There are three types of collective procedures available in Slovenia:

1. Collective action for damages (Chapter 3 of the Collective Actions Act) / redress measures

On this basis, the qualified entity can request compensation for loss in favor of all persons who have been harmed in the case of mass harm, regardless of the legal qualification of the claim, e.g. as compensation, enrichment or fulfillment (Article 3, point 1 of the Collective Actions Act). This institute therefore covers not only claims for damages in the narrower sense but also other levy claims.

2. Collective action for injunctive measures (Chapter 4 of the Collective Actions Act)

On this basis, the qualified entity can request cessation of illegal conduct (Article 3, point 2 of the Collective Actions Act), together with prohibition of similar conduct in the future. The Court may also order the publication of the judgment at the defendant’s expense or the publication of a correction of the inadmissible advertising if it considers that this contributes to mitigating or eliminating the harmful consequences of the infringement.

3. Collective settlement (Chapter 2 of the Collective Actions Act)

A written agreement for compensation of collective damages, caused in the case of mass harm, which the parties propose to the Court for approval, and which is effective and binding upon the Court’s approval (Article 3, point 13 of the Collective Actions Act).

Collective actions (both, for damages and injunctive measures) can be brought to enforce (Article 2/1 of the Collective Actions Act):

consumer claims against companies due to breach of consumer rights;
claims due to violations of the provisions on the prohibition of restrictive practices from Articles 5 and 8 of the Slovenian Prevention of Restriction of Competition Act^[3] or 101 and 102 of the Treaty on the Functioning of the European Union^[4];
claims relating to the violation of trading rules on organized markets and prohibited market abuse practices in accordance with the law governing the market of financial instruments;
workers’ claims which can be asserted by an independent lawsuit in an individual labor dispute, as defined by the law governing the procedure before labor courts;
claims from tort liability for causing an environmental disaster, as defined by the law governing environmental protection.

In the area of legal protection against discrimination, only an injunctive collective action is admissible (Article 2/2 of the Collective Actions Act).

[3] Official Gazette of the Republic of Slovenia, no. 130/22.

[4] Official Gazette of the EU, no. C 326/47 dated 26 October 2012.

Costs: To what extent must the unsuccessful party pay the costs of the proceedings, must they pay all costs or only a part of them, and if so, which part?

The Collective Actions Act determines the principle of success (loser pays principle) regarding costs. The unsuccessful party must reimburse the other party all costs necessary for the procedure (Article 60/1 of the Collective Actions Act).

Unlike in the individual dispute procedures, where these costs are not recognized, in collective disputes the necessary costs incurred by the applicant before the filing of a lawsuit for activities related to organizing and informing the members of the group about the intention to file a collective action, are also considered the necessary costs of the procedure and must be reimbursed on success basis (Article 60/2 of the Collective Actions Act).

Transitional Law: Are there any peculiarities regarding national transitional provisions in relation to Article 22?

The Amendment determines that the procedures that started before it entered into force and have not yet been concluded with a final decision, continue and conclude according to the provisions of the act in force before the enforcement of the Amendment (which transposed the Directive 2020/1828), i.e. according to the Collective Actions Act from 2017.

Opt-in vs opt-out: How are opt-in/opt-out mechanisms regulated (in particular, whether in the context of an order for redress – both domestic and cross-border – claims are permitted on an opt-in or an opt-out basis)?

The Court decides which mechanism (i.e. opt-in or opt-out) will be used in each individual procedure. When deciding on which mechanism to use in the procedure, the Court takes into account all the circumstances of the specific case, especially the value of individual claims of group members and the circumstances that are essential for the approval of the collective action for damages (Article 30/1 of the Collective Actions Act).

There are some exceptions in which only opt-in can be used (Article 30/2 and 30/3 of the Collective Actions Act):

if at least one of the claims in the collective action for damages relates to the payment of compensation for non-pecuniary damage; or
if, according to the assessment contained in the lawsuit, at least ten percent of the group members claim payment exceeding EUR 2,000.

In addition, only opt-in can be used for persons who do not have a permanent residence or registered office in the Republic of Slovenia at the time of the issuance of the decision on the approval of the collective action for damages.

Qualified Entities (QEs): What criteria apply to the designation of QEs, with special regard to the designation of QEs for the purpose of bringing domestic representative actions?

In principle, the Collective Actions Act grants procedural standing to file a collective action or a proposal to confirm a collective settlement (Article 4/1 of the Collective Actions Act) to:

a legal entity under private law, which carries out a non-profit activity and where there is a direct connection between its main goals of operation and the rights that are allegedly violated and in connection with which a lawsuit is filed, and
to the State Attorney’s Office – but not in a collective procedure in which the Republic of Slovenia appears as an opposing party.

The legal entity from point i) above must publish on its website information on sources of its general financing, its organizational structure, membership structure, the purpose of its establishment and activities.

There are also some peculiarities:

Collective action for injunctive measures: in addition to those mentioned above, if a state authority has been established to ensure the special protection of certain groups or interests, it can also file such collective action (Article 47/2 of the Collective Actions Act).
Collective action for injunctive measures in the field of discrimination: such collective action can only be filed by a defender of the principle of equality or a non-governmental organization that has a recognized status of acting in the public interest in the field of protection against discrimination or protection of human rights in accordance with the law regulating protection against discrimination (Article 57/2 of the Collective Actions Act).

The new Article 4a of the Collective Actions Act stipulates that an action for the collective protection of consumer interests or such a proposal to confirm a collective settlement may, in addition to generally qualified entities, in Slovenia also be filed by an entity that represents the interests of consumers and which is entered on the list of qualified entities for filing of consumer collective actions in another member state of the European Union, if its founding purpose for each individual case justifies the filing of a collective action or proposal to confirm a collective settlement.

As regards the filing of consumer collective actions in other EU member states by Slovenian entities, the new Article 57.a determines that such actions can be filed by a legal entity established under private law with a seat in the Republic of Slovenia which is entered on the list of qualified entities for filing of consumer collective actions in another member state of the European Union (please see in more detail our response to "Cross-Border Actions" below).

Class Criteria/Certification: What is the class criteria/certification stage applicable to representative actions, including provisions, if any, that give substance to the requirement “to dismiss manifestly unfounded cases at the earliest possible...

The Court takes into consideration a collective action for damages if (Article 28/4 of the Collective Actions Act):

the collective action asserts claims of the same type, made on behalf of an identifiable group of persons, which concern the same, similar or related factual or legal issues, relate to the same case of mass damage and are suitable for consideration in a collective procedure;
common legal and factual issues for the entire group prevail over issues that relate only to individual members of the group;
the group is so numerous that assertion of claims through separate lawsuits or a different form of association of its members, e.g. joint litigation or consolidation of litigation, would be less effective than filing a collective action for damages;
the applicant fulfils the conditions regarding representativeness determined in the Collective Actions Act;
the claim asserted by the collective action for damages is not manifestly unfounded;
the conditions regarding third-party litigation funding (please see our response to "Third-Party Litigation Funding") are met; and
the Court considers that a possible payment agreement with the attorney-at-law is reasonable and in line with the provision that payment to the attorney-at-law may, upon agreement, be higher than the Attorney-at-law Tariff or determined as a maximum of 15% of the amount awarded by the Court.

When the Court assesses that the condition of reasonable premium in cases of third-party funding is not met, it urges the applicant to correct or provide a new agreement on costs and financing of the procedure within the set deadline. If other conditions (please see conditions in "Third-Party Litigation Funding") are not met, the Court urges the applicant to ensure fulfillment of all conditions within a given deadline.

When the Court assesses that the payment agreement with the attorney-at-law is not in line with the set conditions, i.e. reasonable and in line with the determined maximum of the amount awarded by the Court, it urges the applicant to provide a corrected or a new agreement with the attorney-at-law within a given deadline.

When deciding on the suitability of claims for consideration in the collective procedure, the Court takes into account (Article 28/5 of the Collective Actions Act):

if the collective procedure enables the effective resolution of common legal and factual issues;
what are the costs and benefits of continuing the collective action procedure;
if the group members have filed any independent actions relating to these or similar claims;
what are the size and characteristics of the group;
what are the possibilities of determining group members;
if the claims are suitable for the award of aggregate compensation;
if alternative dispute resolution or other dispute resolution options are available.

Third-Party Litigation Funding: Please describe how third-party funding is regulated, with special regard to funding of representative actions for redress measures. Can the court order the representative organization to disclose the funding agreem...

In the case of collective actions, the applicant must publicly reveal and report to the Court the source of the funding that will be used for financing the court procedure (Article 59 of the Collective Actions Act).

The Collective Actions Act does not explicitly require disclosure of the funding agreement; therefore, in this respect, the question might arise of how would the Court in practice effectively review the above requirements without the revelation of a funding agreement.^[5] However, the requirement to disclose the funding agreement indirectly stems from a provision of the Collective Actions Act that upon the suggestion of the applicant at disclosure of the funding agreement, the Court will redact the part of the funding agreement that contains business secrets, if it is not necessary for review of fulfillment of conditions to use financial assets provided by a third party.

In the case of third-party funding of a collective action procedure:

there may be no conflict of interest between the third party and the applicant and the members of its group;
the third party may not finance a collective action against the defendant, who is its competitor or against a defendant on which it is dependent;
the third party must have sufficient resources to meet its financial obligations to the applicant who initiated the collective action procedure;
the applicant must demonstrate that it has sufficient resources or adequate security to reimburse the other party's costs in the event of failure to succeed in the collective action proceedings;
the agreed premium must be reasonable.

In assessing whether the agreed premium is reasonable, the Court takes into account especially the complexity of the dispute, the extent of risk assumed in relation to costs and complexity of the dispute, and the rights of group members to full compensation. The third-party, funding the collective action, may not have a decisive influence on the procedural decision of the applicant, including settlement decisions if they are not beneficial to the collective interests of group members.

[5] B. Brežan, M. D. Osojnik, Financiranje stroškov pravdnega postopka s strani tretjih oseb (en. Third Party Litigation Funding), Pravna praksa, št. 41-42, 2020, p. 18-19; M. Djinović, Stroški postopka in financiranje kolektivne tožbe po Zakonu o kolektivnih tožbah (en. Costs of the procedure and third party litigation funding according to the Collective Actions Act), Pravni letopis, št. 1, 2022, p. 117.

Redress Settlements: How are settlements regulated, with special regard to “rules according to which individual consumers concerned by the action and by the subsequent settlement are given the possibility to accept or to refuse to be bound by sett...

Collective settlement is regulated in the second chapter of the Collective Actions Act. The procedure on confirmation of a collective settlement is initiated upon a mutual proposal by the parties to the collective settlement. The Collective Action Act (Article 13) also determines its mandatory elements, which are as follows:

information on parties to the collective settlement and facts from which it can be assumed that the qualified entity is representative;
description of mass harm, subject of collective settlement;
description of the group and optional sub-groups;
assessment of the number of group members, also within optional sub-groups, together with the basis for such assumption, and in the appendix a list of known members of the group;
the chosen mechanism of the conclusion of collective settlement (opt-in or opt-out) and the reason for this decision;
the amount of aggregate compensation, also within optional sub-groups, or the individual amount of compensation that each member of the group will receive upon fulfillment of conditions;
reasoning on how the compensation from the previous point was calculated;
the means of notifying members of the group;
the proposed wording of the notice to group members that has to be published;
if the collective settlement is concluded in line with the opt-out mechanism: the deadline within which the members of the group, included in the settlement, have to enforce their request for payment;
if the collective settlement is concluded in line with the opt-in mechanism, proof has to be enclosed to the declaration on inclusion;
rules on how the request for payment is enforced, how the validity of a claim is assessed and the mechanism for out-of-court dispute settlement upon denial of payment;
commitment when the payment is carried out to a trust account with a notary public.

Upon the Court’s decision that the proposal to confirm a collective settlement is permissible and complete, the Court notifies the group members about this. The known members of the group are notified by regular mail to their last known address and, if possible, with notices to their e-mail addresses. If, due to the very large number of injured parties or where this would entail disproportionate costs, it is not possible to inform all members of the group, the Court shall decide that the parties to the collective settlement are obliged to ensure that they are informed by publication by other appropriate means, such as by publication or repeated publication in daily newspapers, by electronic media, or by means of existing or to be established websites.

Members of the group and qualified entities, not parties to the collective settlement, may submit to the Court, within the set deadline and extent, their written opinions.

The court rejects the conclusion of a collective settlement, if:

the qualified entity is not representative to secure interests of persons, for the account of whom it has concluded the collective settlement;
the amount of compensation is not reasonable, taking into account the extent of damages, simplicity of repayment, cause and responsibility for damages, and also that the settlement is concluded with mutual concessions, with uncertainty and costs of the procedure on the other hand;
the deadline for individual payment requests is obviously unreasonable;
the costs to be paid to the opposite party go beyond the actual costs incurred by the party;
there is not enough guarantee that the agreed amount will suffice to repair damages to all injured parties;
the settlement does not contain an independent appropriate mechanism to assess if claims are justified, including an independent mechanism for out-of-court dispute resolution in this respect;
interests of persons, on the account of whom the settlement was concluded, are not secured enough.

Before the Court rejects the proposal for collective settlement, it may give the parties an opportunity to correct or change it, offering them support and help. If the Court does not reject the proposal for collective settlement, it issues a decision confirming it. After the Court has confirmed the collective settlement, it may set a deadline not shorter than 30 days and not longer than 90 days, wherein the injured party may let know the Court whether they wish to be included or excluded from the impact of the settlement (second paragraph of Article 18).

The settlement can be concluded in two ways (Article 20):

according to the system of exclusion (opt-out): will bind all parties except those who (i) explicitly stated that they wish to be excluded, and (ii) did not notify the Court that they wish to be included within the given deadline if they do not reside in the Republic of Slovenia;
according to the system of inclusion (opt-in): will bind only the parties that explicitly state that they wish to be included.

It will be up to the Court in each individual proceeding to decide which mechanism to use, taking into account all circumstances of the case.

Public Information/Database of Representative Actions: How are the publication of information and database of representative actions regulated, with special regard to any requirement of judicial vetting (e.g. court-approved description of the acti...

The so-called register of collective actions is regulated in Article 10 of the Collective Actions Act and has been established and maintained by the Supreme Court of the Republic of Slovenia. The register is further regulated by the Rules on the Register of Collective Actions^[6].

The following data and documents shall be processed and published in the register of collective actions:

the fact that a collective action has been filed, the parties to the proceedings, the alleged mass injury to which the action relates;
the collective action with attachments, excluding personal data of known members of the group;
the decision granting the collective action and the date on which that decision has become final;
the notifications to members of the group / injured parties on granting of collective settlement, approval of collective action, and on final judgment;
hearings and invitations to submit written observations;
the judgment or other decision concluding the collective action proceedings;
the number of members included or excluded;
the collective settlement submitted to the Court for approval;
the approved collective settlement or the decision on termination of the procedure for approval of the collective settlement;
information on the mechanisms available to obtain compensation, including out-of-court mechanisms;
the decision on approval of the final report, without the personal data of the injured parties;
other information if the Court so decides.

The register is accessible to everyone free of charge, on the website of the judiciary.

In addition to publishing in the register, the applicant must ensure that it has published on its website information on the status of the collective procedure or of the procedure on the basis of the proposal to confirm a collective settlement, as well as the outcome of either the collective action or collective settlement.

[6] Official Gazette of the Republic of Slovenia, no. 26/2018.

Discovery/Disclosure: Are there any special discovery/disclosure rules applicable to representative actions, or collective (non-unitary) actions in general? If there are no such rules either, please briefly refer to the general discovery/disclosur...

Save as otherwise mentioned below, the Collective Actions Act does not contain any specific rules regulating the disclosure of evidence and information; therefore, in this regard, in principle general rules of the Slovenian Contentious Civil Procedure Act (“ZPP”)^[7] apply.

According to Article 227 of the ZPP, the Court may, at the request of a party making a reference to a certain document that lies in the control of the opposite party, order the opposite party to submit a certain document to the Court within a given deadline. The request has to be specified and must include the name or type of the document, a statement of fact to be proven by the document, a description of the content of the document, as well as a statement of facts from which it can be concluded that the document is in possession of the other party. If the party in possession of the document refuses to comply with the Court order or denies, against the belief of the Court, that the document is in his possession, the Court may consider that the document exists and that its contents are as alleged by the other party. It may not, however, impose a pecuniary penalty upon the party.

According to Article 228 of the ZPP, the Court may, at the request of a party to the proceeding, order also third parties to produce a document. The request of a party must include the specification/type of the document, the fact that is to be proven by the document, a specific description of the content of the document and facts, on the basis of which it can be concluded that the document in possession of a third party. The Court order to submit a certain document may be enforced ex officio in line with the rules of the Slovenian enforcement proceeding. In this respect, also pecuniary penalties are possible.

In line with the Directive 2020/1828 (Article 19), member states may impose pecuniary penalties for the cases of disclosure. In this respect, the Amendment introduced a new Article 9.a to the Collective Actions Act, determining that if a party in possession of a document refuses to comply with the Court order requiring to produce it, or if the party, against the belief of the Court, denies that the document is in its possession, the Court ex officio enforces the final Court order on production of a document in accordance with the rules of enforcement procedure. This consequence therefore gives the Court a new legal basis in collective action proceedings to enforce the order for producing a document ex officio in line with the rules of enforcement procedure. This provision excludes from use the provision of Article 227 of the ZPP (applicable in case of individual actions) that does not allow for enforcement in such cases.

Article 182.a of the ZPP enables also filing of the so-called “lawsuit by stages,” under which the applicant can file two claims against the same defendant and claim disclosure of information and/or evidence by the first claim, and reserve the substantiation of the second (main) claim (i.e. stating relevant facts and submitting supporting evidence related to the second claim) for the next stage, i.e. for after the applicant will have succeeded with its first claim and received the sought information and/or evidence from the defendant. However, the requirement for filing such a lawsuit is that the party has to have a claim for disclosure of documents, inspection of documents or disclosure of information on the basis of substantive law, either by contract or any applicable law^[8]. Namely, the lawsuit by stages has been introduced with the purpose of solving the problem of informational asymmetry between the parties when a party already has a claim for disclosure of documents on the basis of substantive law.

[7] Official Gazette of the Republic of Slovenia, no. 73/07 - Official Consolidated Text, 45/08 - ZArbit, 45/08, 111/08 – Decision of Constitutional Court (“DCC”), 121/08 - DCC, 57/09 - DCC, 12/10 - DCC, 50/10 - DCC, 107/10 - DCC, 75/12 - DCC, 76/12 - corr., 40/13 - DCC, 92/13 - DCC, 6/14, 10/14 - DCC, 48/14, 48/15 - DCC, 6/17 - DCC, 10/17, 32/18, 16/19 - ZNP-1, 70/19 - DCC, 1/22 - DCC, 3/22 - ZDeb)

[8] Court decisions ref. no. I Cpg 135/2022 dated 15 December 2022, ref. no. I Cpg 37/2023 dated 1 February 2023.

Cross-Border Actions: Are there any procedural mechanisms and other requirements for cross-border representative actions?

Since the Amendment, collective actions for the protection of consumers’ interests may be filed in Slovenia by an entity entered on the list of qualified entities for filing consumer collective actions in another member state of the European Union (Article 4.a), as well as it may be filed in another member state of the European Union by a legal entity established under private law with a seat in the Republic of Slovenia which is entered on the list of qualified entities for filing of consumer collective actions in another member state of the European Union (Article 57.a).

Filing in Slovenia

A cross-border consumer collective action may be filed in Slovenia by an entity that represents the interests of consumers and is entered on the list of qualified entities for filing consumer collective actions in another member state of the European Union if its founding purpose for each individual case justifies the filing of a collective action or proposal to confirm a collective settlement. In cases where the defendant shows a reasonable doubt that the qualified entity fulfills conditions to file a consumer collective action in another member state, the Court checks whether the entity is included in the list, or makes inquiries via a national contact point. Such a national contact point is obliged to cooperate with the Court and is established in line with Article 57.c of the Collective Actions Act – in Slovenia, the Ministry of the Economy, Tourism and Sport is responsible.

Filing in another member state of the European Union

A consumer collective action in another member state can be filed by a legal entity governed by private law with its registered office in the Republic of Slovenia, which is entered on the list of entities qualified to bring consumer collective actions in another member state. The list is maintained by the Ministry of the Economy, Tourism and Sport, and will be published on the central website of the State Administration. Such a list has not yet been established.

The legal entity, that wishes to be entered on the list, must meet the following conditions:

demonstrated 12 months of activity in the field of protection of consumers' interests prior to the request for entry on the list;
legitimate interest in the protection of consumers interests in line with its founding purpose;
engagement in a non-profit-making activity in the field of consumer protection;
not subject to insolvency proceedings;
independency and no influence from persons other than consumers, and having procedures in place to that end preventing both influence and conflict between its own interests, the interests of its own financing providers and those of consumers;
by all appropriate means in plain and intelligible language published information, in particular, on its website, showing that it meets the conditions summarized above, and information on its sources of funding in general, its organizational and administrative structure, membership structure, founding purpose and activities.

The entity qualified to bring consumer collective actions in another EU member state shall be removed from the list upon its request or if the Ministry which issued the decision on entry into the list establishes that the above conditions are no longer fulfilled.

Cy près Awards: Are there any rules “on the destination of any outstanding redress funds that were not recovered within the established time limits”?

In case of collective actions for damages, after the court-set deadline to claim payment in the opt-out system (not shorter than 90 days and not longer than 6 months), after repayment of injured persons and after payment of costs of the procedure, any outstanding funds are returned to the defendant (Article 46 of the Collective Actions Act).

In the case of collective settlement, determining aggregate compensation, the part of damages that has not been paid to individual injured parties after the deadline set in the settlement is returned to the person who was obliged to pay (i.e. the defendant).

Other: Please provide any further comment that you deem worthy of note.

Claims, subject to a collective action or proposal to confirm a collective settlement, will not become statute-barred during the course of the procedure. The statute of limitations will not be met earlier than 30 days after the conclusion of this procedure. The Amendment also adds the provision that a statute of limitations for claims for the protection of rights arising out of legal relations between persons on the same basis as the collective action for injunction measures does not run during these proceedings.

Another additional note-worthy amendment brought by the transposition of Directive 2020/1828 is a provision on payment of the Attorney-at-law’s fees. The Attorney-at-law may agree to payment higher than the Attorney-at-law Tariff or for payment in the maximum amount of 15% of the amount awarded by the Court, if such an agreement is reasonable and taking into account the criteria determined above (please see in "Third-Party Litigation Funding" on reasonable premium, Article 59 of the Collective Actions Act); namely, especially the complexity of the dispute, the extent of risk assumed in relation to costs and complexity of the dispute, and the rights of members of the group to full compensation.

If the Attorney-at-law cannot receive payment from the repaired costs of the procedure by the opposite party, the individual amounts, to which members of the group are entitled, will proportionally decrease.