The European Union (“EU“) has adopted a set of directives modernizing the field of European company law with the aim to digitally transform the functioning of the internal market. In particular the EU adopted the Directive 2019/1151 amending Directive (EU) 2017/1132 as regards the use of digital tools and procedures in the field of company law (the “Digitalization Directive“) and Directive (EU) 2019/2121 amending Directive (EU) 2017/1132 as regards cross-border transformations, mergers and divisions (the “Mobility Directive“).
The Slovenian legislator will transpose these Directives into the national legal order by proposing an amendment to the Companies Act (the “Amendment to ZGD-1” or the “Amendment”), with the fundamental objective of facilitating the use of digital tools in the process of incorporation and operation of a company, supplementing the regulation of cross-border mergers and redefining the procedure for cross-border transformations and divisions of companies. The main novelties introduced by the Amendment are as follows:
- Online incorporation of capital companies: in order to make the incorporation of companies faster and easier, the Amendment to ZGD-1 provides a legal basis for the online incorporation of capital companies without the need for the founders to be physically present at the notary or registration authority. The establishment of a one-person limited liability company will be possible directly through the Slovenian Business Point portal (“SPOT”) using a qualified digital certificate. For other cases of incorporation of companies, the Amendment to ZGD-1 refers to the Notariat Act, which provides a legal basis for the remote drafting of a company agreement in the form of a notarial deed by means of a direct secure audio-video link between the founders and the notary.
- The system of interconnection between the court registers: the Amendment to ZGD-1 introduces the above-mentioned system, which will allow companies to submit certain information and documents only once, as the registration authorities will exchange the submitted documents between themselves.
- Possibility to hold a virtual general meeting without the physical presence of shareholders: the Amendment to ZGD-1 regulates this possibility under the condition that it is provided for in the company’s articles of association. In this respect, the Amendment provides for a specific provision that a challenge to a resolution of a general meeting may not be based on a violation of shareholders’ rights resulting from technical interference with the use of technical means at an electronic or virtual general meeting, unless the technical interference is the result of gross negligence or willful misconduct on the part of the company that convened the meeting.
- Cross-border transformations, mergers and divisions: the Amendment to ZGD-1 introduces for all three types of cross-border operations (i.e. mergers, divisions and transformations) a similar structured and multi-step procedure and some common rules, in particular governing the preparation of the cross-border operations plan and specifying what information it must contain and what documents must be attached.
- Measures to protect creditors: the Amendment to ZGD-1 introduces the right to a specific remedy whereby creditors can seek security for their claims which are older than the date of publication of the plan.
The novelties set out in the Amendment undoubtedly constitute an important step towards the transition to the digital age and will thus provide an important means of adapting company law to a rapidly changing and evolving market.