A look at corporate, personal and, where relevant, partnership insolvency proceedings in Slovakia, with a brief description to explain key features, as part of our Dictionary of Insolvency Terms in EU Member States. In particular, we highlight who controls the procedure and whether it is likely to be accompanied by a moratorium to prevent enforcement.
Konkurz, konkurzné konanie
Bankruptcy, bankruptcy proceeding
- A company, partnership or natural person is insolvent (úpadok) if it is: (i) unable to pay at least two monetary liabilities due to more than one creditor within 30 days of the (respective) due dates(platobne neschopný); or (ii) over-indebted (predĺžený), which means that the value of its liabilities exceeds the value of its assets.
- Bankruptcy provides for a sale of the debtor’s assets and satisfaction of its creditors from the proceeds of sale. For corporate entities or partnerships, it leads to the winding up of the debtor.
- Once the court declares the bankruptcy of the debtor, the debtor is obliged to limit the performance of its activities to usual legal acts.
- During the bankruptcy, the trustee appointed by the court shall administer and realise the property subject to bankruptcy and use the proceeds from the realisation to satisfy creditors. However, creditors can give binding instructions and recommendations to the trustee in connection with the administration of the property subject to bankruptcy, the operation of the debtor’s enterprise and the realisation of the property that is subject to the bankruptcy.
- Any debt still outstanding following the debt discharge will be rendered unenforceable, together with:
- any interest or default charges exceeding 5% of the principal per calendar year accrued before a “decisive date” (being the calendar month in which the bankruptcy was declared or the protection from creditors was provided).
- any interest or default charges accrued on and after the decisive date.
- certain amounts due under any promissory note if it was signed by the debtor before the decisive date.
- contractual penalties and penalties imposed by the state authorities (if the obligation triggering the penalty was breached prior to the decisive date).
- claims of the affiliated parties accrued before the decisive date.
- costs of participants in the proceedings incurred in connection with their participation in the bankrutpcy proceedings.
- The following claims receive protection from the debt discharge:
- unregistered debt of an individual creditor on the grounds that they have not been notified in writing of the bankruptcy proceedings.
- secured claims up to the value of the pledged assets.
- non-monetary claims.
- any monetary penalty pursuant to the Criminal Code.
- employment claims against the debtor.
- alimony claims.
- There is also a “homestead exemption.” If a homestead is included in the debtor’s property assets, the first EUR10,000 of realisations in relation to the homestead will not be subject to the bankruptcy. The debtor’s homestead cannot be realised if the proceeds after deduction of EUR10,000 would not satisfy the costs of realisation and at least part of the creditors’ claims. The value of the debtor’s homestead is estimated by the trustee.
- An application to declare bankruptcy may be filed at court by a debtor, a creditor (only where the debtor is a corporate entity or natural person entrepreneur) or a liquidator of the debtor. A debtor is obliged to submit an application to declare bankruptcy within 30 days of the date when it knew or, exercising professional care, should have known of its insolvency.
- As part of the decision declaring bankruptcy, the court will appoint a trustee, at random, from the register of trustees.
- The trustee manages the debtor’s property, sells the debtor’s assets and distributes the proceeds to creditors.
- A form of bankruptcy (intended to be faster than regular bankruptcy) that can apply to insolvent companies and all forms of partnership.
- A court may declare small bankruptcy if the debtor has (i) no liabilities exceeding EUR1,000,000 and (ii) no assets exceeding EUR1,000,000 according to the last five financial statements.
- All licenses to conduct business of the debtor expire by declaring a small bankruptcy.
- Like bankruptcy, small bankruptcy provides for a sale of the debtor’s assets and satisfaction of creditors from the proceeds of sale.
Konkurz prevádzkovateľa prvku kritickej infraštruktúry
Bankruptcy of the critical (essential) infrastructure element operator
- Special rules apply to bankruptcy concerning the assets of a critical infrastructure element operator (ie entities designated by the Slovak authorities operating in sectors such as transport, telecommunications, energy, health, finance, agriculture) on the grounds that the operation of the critical infrastructure is at risk.
- The operation of the critical infrastructure element shall be at risk if the operator has entered into (amongst others) liquidation, bankruptcy or similar proceedings or enforcement of security has been initiated.
- The administrator may terminate or restrict the operation of a critical infrastructure element only with the consent of the Slovak authorities.
- Proceedings that provide a flexible approach under a plan to restructure a debtor’s liabilities or to effect other restructuring measures (including a sale of assets).
- An application to authorise a restructuring may be submitted to the court by a debtor, or a creditor with the debtor’s consent, but only if a trustee registered in the register of trustees provides an expert opinion and recommends restructuring.
- During a restructuring, a debtor is obliged to restrict its actions to those in the ordinary course of business; any other actions must be approved by the trustee.
- The trustee supervises the debtor and reviews registered claims. After a successful restructuring, the debtor may continue to operate its business.
- Insolvent natural persons may apply for debt discharge via bankruptcy or a payment schedule regardless of whether their liabilities and obligations arise from business activity.
- As regards the debt discharge by means of a payment schedule, the court will provide the debtor with protection from creditors and appoint a trustee within 15 days of the receipt of the draft payment schedule.
- The payment schedule must enable unsecured creditors’ claims to be paid at an amount that is at least 10% higher than they would have obtained in bankruptcy.
- If the debtor’s situation does not allow the payment schedule to be drawn up, the trustee shall advise the debtor to apply for declaration of bankruptcy.
- In debt discharge proceedings, any debts due to creditors that were not satisfied in the previous bankruptcy proceedings will become unenforceable.
A pledgee is entitled to enforce a pledge in any way permitted by the legal regulations applicable at the time of the enforcement and as set out in the pledge agreement.
Záložné právo k nehnuteľnosti
A mortgagee is entitled to enforce a mortgage in any way permitted by the legal regulations applicable at the time of the enforcement and as set out in the mortgage agreement. In bankruptcy proceedings, a mortgagee shall claim all amounts due to it through an application. However, it is a trustee who is entitled to exercise the mortgage right, ie to sell the property and subsequently to satisfy the mortgagee.
EU Directive Implementation
The EU Directive on Restructuring and Insolvency1 requires Member States to incorporate minimum common standards into their national restructuring and insolvency laws by 17 July 2021, with an option to extend that deadline by one year. The intention of the Directive is to reduce barriers to the free flow of capital stemming from differences in Member States’ restructuring and insolvency frameworks, and to enhance the rescue culture in the EU.
Notable features required to be included in Member States’ national laws include:
- An effective preventive restructuring framework to enable debtors experiencing financial difficulties to restructure at an early stage, with a view to preventing insolvency and ensuring their viability.
- A stay of up to four months extendable to up to 12 months to support negotiations of a restructuring proposal, which should prevent individual enforcement action and include rules preventing the withholding of performance, termination, acceleration or modification of essential contracts.
- An ability to cram down dissenting classes of creditors.
- Adequate protection for financing needed to allow the business to survive or to preserve the value of the business pending a restructuring, and for new financing necessary to implement a restructuring plan
- Provision for honest, insolvent entrepreneurs to have access to a procedure that can lead to a full discharge of their debts (subject to limited exceptions) within three years.
Implementation in Slovakia
The Directive has not yet been implemented in Slovakia.
The implementation date is currently unknown
Recognition of foreign insolvency processes
EU regulation on insolvency proceedings
The EU Regulation on Insolvency Proceedings2 applies to all EU Member States except Denmark and requires that certain collective insolvency proceedings, which are listed in Annex A to the Regulation, occurring in one EU Member State are automatically recognised in all other EU Member States and that each EU Member State automatically recognises the powers and authority of an insolvency practitioner appointed in another EU Member State.
Recognition of third country insolvency processes
The recognition of third country insolvency proceedings (non-EU) is governed by the principle of reciprocity, unless stipulated otherwise by an international treaty. The Slovak court ordinarily has jurisdiction if the debtor has property in the territory of the Slovak Republic regardless of its value.
Third country insolvency proceedings will be recognised by the Slovak court upon petition of the foreign trustee in bankruptcy, if (i) there is reciprocity with the third country, (ii) the foreign trustee in bankruptcy proves the initiation of bankruptcy, its appointment and legal interest in obtaining recognition; and unless an international treaty stipulates otherwise.
Once recognised by the Slovak court, the third country decision on insolvency has the legal effects associated with it by the law of the state in which it was issued. The Slovak court may also exclude some of its legal effects in the territory of the Slovak Republic, or grant some additional legal effects under the Slovak insolvency legislation.
Insolvency changes in response to COVID-19
For more information on changes to insolvency law in Slovakia as a result of COVID-19 pandemic, please refer to our Guide to changes in insolvency law in response to COVID-19.
Contact: Michaela Stessl
1 Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures
concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132
2 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).