Class actions in Slovenia

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In line with the Collective Actions Act (Zakon o kolektivnih tožbah; Official Gazette of the Republic of Slovenia no. 55/17; “ZKolT”) the nature of the class action (whether “opt-in” or “opt-out”) will be determined by the court in the decision on approval of class action (sklep o odobritvi kolektivne tožbe). The claimant is required to make a request as to whether the claim should proceed on an “opt-in” or an “opt-out” basis, but the court is not bound by the proposal and may exercise its discretion.

In making the decision, the court must consider all the circumstances of the specific case, including: (i) the value of claim of each group member; and (ii) the circumstances that are decisive for approval of a class action for damages.

The “opt-in” system is obligatory if: (i) at least one of the claims in the class action relates to the payment of compensation for non-pecuniary damage; or (ii) according to the assessment contained in the action at least 10 % of the group members are seeking payment in excess of EUR 2,000 each. Additionally, the “opt-in” system must be used for all persons who do not have a permanent residence or registered office in Slovenia at the time of issuing of the decision on approval of class action.

Please see the answer to question 1.

In relation to class actions, there are certain restrictions regarding the standing to sue. As a general rule, only the following entities are entitled to file a class action:

1. a representative private legal person (e.g., an organisation or foundation) that meets certain criteria (carries out a non-profit activity, has a direct link between its primary objective of operations and the rights allegedly infringed, etc.); and
2. a senior state attorney.

Certain additional restrictions apply for filing consumer class actions and class actions aiming to prevent discrimination. Namely, consumer class actions can only be filed by: (i) consumer associations; or (ii) chambers or business associations of which the defendant is a member. Class actions aiming to prevent discrimination can be filed only by: (i) the Advocate of the Principle of Equality (the Slovenian governmental designate who is responsible for these matters); or (ii) certain non-governmental organisations.

Class actions were uniformly introduced in Slovenia by ZKolT, which was enacted in 2017 and entered into force in April 2018. Class actions are not yet common in practice. According to the publicly available register of all class actions in Slovenia, 1 Available at http://www.sodisce.si/sodni_postopki/javne_obravnave/kolektivne_tozbe/  there are only four ongoing class actions. 

We Currently we are not aware of any pending changes in relation to class action rules.

Yes, in Slovenia, there is a limited number of types of claim that can be pursued by way of class action, namely:

1. certain consumer protection claims;
2. certain competition claims;
3. certain claims regarding trading on organized markets;
4. certain employment-related claims;
5. claims regarding liability in relation to environmental incidents.

Under the ZKolT, damages claims and injunctive relief are available. Interim measures can be pursued in connection to certain claims.

The principle of full compensation (for property damage) or fair compensation (for non-pecuniary damage) apply as well as other general civil rules for calculation of damages.

From the procedural perspective, the court can use one of the following options to rule on damages:

1. individual assessment of damages incurred by each known individual;
2. an aggregate compensation; or
3. an amount or an otherwise determinable sum (expressed, for example, as a percentage of the price or unit) or other compensation that each injured party will receive, whereby a court also assesses the potential total damages.

Punitive or exemplary damages are not recoverable. Such regulation in ZKolT follows the Commission recommendation 2013/396/EU of 11 June 2013. 2 “Recommendation on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law”

We assess that certain changes to ZKolT will be required to assure compliance with the Representative Action Directive (e.g., adjustment of rules on penalties applicable to non-compliance with the final decisions, rules on procedural expediency etc.).

ZKolT contains a set of rules for settlement of class actions. Namely, the settlement proposal must contain certain information and meet certain conditions to be approved by the court and thus be approved a court settlement. Such settlement is generally binding on all the injured individuals not opting-out (in case of an “opt-out” system) or all the injured individuals opting-in (in case of an “opt-in” system). The regime for payments to respective individuals must be defined in the settlement. 

The competent courts for class actions are general district courts in Ljubljana, Maribor, Celje and Koper. For the assessment of territorial jurisdiction, general rules of civil procedure should be applied.

In this regard please note that the “opt-out” system cannot be used for persons who do not have a permanent residence or registered office in Slovenia at the time of the issuing of the decision on approval of class action.

The court certifies a class action upon the following conditions being met:

1. it raises similar claims made on behalf of an identifiable group of persons concerning the same, similar or related factual or legal issues, relate to the same case of mass damage and are suitable for collective proceedings;
2. common legal and factual issues for the entire group of injured parties prevail over issues that concern only individual members;
3. a group of injured parties is so large that the assertion of claims by separate actions or another form of merging of its members, e.g., co-dispute or merger of litigation, would be less effective than bringing a class action;
4. the claimant meets the conditions to represent injured parties;
5. the claim is not manifestly unfounded;
6. compliance with the rules for financing of the class action and contingency fee arrangements.

In assessing whether the claim is suitable for a collective proceeding, the court takes into account: (i) efficiency in resolution of common legal and factual questions; (ii) costs and benefits; (iii) possible individual actions filed by each member; (iv) size and characteristics of the group; (v) possibility to identify members of the group; (vi) suitability of claims for aggregate damages; (vii) availability of alternative dispute resolution mechanisms, etc.

There are no specialist courts for class action proceedings. Jurisdiction is held by the chosen general district courts.

There are no special rules.

There are no special rules for appeals of class action procedures.

Even though such clauses are not yet court-tested, we are of the view that arbitration clauses would likely be ineffective and that the class action procedures would be applied even if an arbitration clause was present.

Yes, lawyers may agree to a contingency fee amounting to up to 15% of the amount to be awarded by the court. If a lawyer undertakes to bear all the costs of the proceedings in the event of failure, the agreed fee may be increased to 30% of the amount awarded by the court.

As a general rule, the losing party must pay the costs of the winning party that were necessary for the action. ZKolT explicitly states that the costs incurred by the claimant prior to filing of the action (including the activities of organizing and informing the injured parties of the intention to bring a class action) also constitute costs of proceeding and must be reimbursed where the action succeeds.

The costs are calculated based on the general rules on calculation of court fees and attorney’s costs and depend on the value of claim.

Litigation funding is permissible for class actions in Slovenia, although certain restrictions apply. Namely, the claimant must publicly disclose and report to the court the origin of the funds used to finance the class action. The court then performs an assessment of whether such funding is permissible. The court can deny funding, among others, if: (i) a conflict of interest between the third party and the claimant or members of his group exists, (ii) the third party does not have sufficient resources to meet its financial obligations to the claimant, or (iii) the claimant fails to demonstrate that he has sufficient resources or adequate security to reimburse the costs of the counterparty if it does not succeed in the class action.

We cannot assess how prevalent litigation funding is in Slovenia, but we reiterate that only a few class action proceedings have been initiated so far.

See the Overview of the Representative Actions Directive >>

For more information on European Class Actions, please download our annual report: 

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European Class Action Report 2023

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