7.  The applicant was born in 1956 and lives in Ljubljana.
8.  On 8 October 1992 the applicant became a member of L.E., which was at that time a public limited company operating under Slovenian law. The share capital of L.E. stood at 2,995,250 Slovenian tolars (SIT)[1] and the applicant’s capital contribution was SIT 332,805.55[2] (that is, 11.11% of the company’s share capital). L.E. had nine members in total.
9.  On 2 February 1993 the applicant was employed by company L.E. as head of its IT department. In addition, he provided assistance to the finance director (bookkeeping).
10.  On 19 February 1993 two key members and directors of company L.E., Mr J. Za. and Mr M. D., died in a car accident. The first one, however, remained registered as a member of L.E. The shares of the second were taken over by Ms D. D. Two other members, Mr J. Zu. and Mr D. P., were seriously injured, but also remained registered as members of L.E. Following those events, the applicant assumed the role of acting director of L.E. on 29 April 1993, and then of managing director on 23 February 1995. In that capacity he acted as the company’s representative.
11.  In 1993 the Slovenian Railways, a statutory company, initiated civil proceedings against L.E., claiming the payment of three sums arising from their business dealings, totalling approximately SIT 5,000,000. The applicant represented L.E. at all hearings held in that case except for the last hearing on 22 November 2000.
12.  On 9 August 1995 Mr M. K., another member of L.E., died, but nevertheless remained registered as a member.
13.  In November 1995 L.E. was aligned with the Companies Act 1993, as required (see paragraph 35 below), and at the same time converted from a public limited company into a limited liability company (see paragraph 33 below). At that time L.E. was already both illiquid and insolvent.
14.  On 6 May 1996 the general meeting of L.E. dismissed the applicant from the post of managing director. Since the members failed to appoint a new director, as required (see paragraph 37 below), the applicant’s dismissal was not entered in the court register and he remained registered as managing director of L.E.
15.  On 19 June 1997, on the applicant’s initiative, the general meeting of L.E. decided to start winding-up proceedings. The applicant made a winding-up petition on behalf of L.E. on 23 June 1997, declaring that the company had been insolvent for some time and that its total debt was SIT 22,393,952. On 16 July 1997 the competent court ordered L.E. to make, within 15 days, the required advance payment to cover the costs of the publication of the winding-up order in the Official Gazette in the amount of SIT 150,000[3]. The applicant alleged that some members of L.E. had refused to contribute to the advance payment and had preferred to wait for the competent court to wind up the company of its own motion, in accordance with the then applicable legislation (see paragraph 40 below).
16.  On 31 July 1997 the applicant stopped working for L.E.
17.  On 25 September 1997 another member of L.E., Mr J. Zu., died, but nevertheless remained registered as a member.
18.  On 15 October 1997 L.E.’s winding-up petition was rejected for failure to make the required advance payment.
19.  By a judgment of 22 November 2000, the District Court of Ljubljana ordered L.E. to pay the Slovenian Railways the sums claimed plus interest (see paragraph 11 above). L.E. did not appeal; the judgment became final on 12 January 2001.
20.  On the basis of notification from the competent authority that L.E. had not performed any transactions through its bank account in a period of twelve consecutive months, on 19 January 2001 the Ljubljana District Court – acting in its capacity as the registry court – initiated proceedings to strike off the company from the court register pursuant to the Financial Operations of Companies Act 1999 (hereinafter “the FOCA”; paragraphs 41-52 below).
21.  On the same day, the decision to initiate strike-off proceedings was entered in the court register. The decision was sent to the registered address of L.E., but since no representative of the company was there to receive it, a delivery slip was left in its mailbox, notifying the company that the relevant correspondence could be collected at the post office. On 12 February 2001 the decision was returned to the registry court with the information that the addressee had failed to collect it. The registry court then served it by posting it on its notice board, as provided for by domestic law.
22.  No objection was made to the decision of 19 January 2001, either by L.E. or by its members. Consequently, on 11 May 2001 the registry court issued a decision to strike off L.E. from the court register. The decision was published in the Official Gazette on 30 May 2001[4]. The registry court also attempted to serve the decision on L.E. by sending it to the company’s address, but like the previous decision, it was returned on 4 June 2001 with the information that the addressee had failed to collect it. The decision was again posted on the registry court’s notice board. Neither company L.E. nor any of its members, who were entitled to lodge an appeal against the strike-off decision, appealed against the decision, so on 17 August 2001 it became final.
23.  On 25 September 2001 L.E. was struck off from the court register and thus ceased to exist. Notification of the strike-off was published in the Official Gazette on 6 February 2002[5]. At the time of the strike-off, L.E. had nine registered members (including the applicant). The applicant stated that he had become aware that his company had been struck off on 22 December 2004, when a writ was served on him (see paragraph 24 below).
24.  On 5 April 2002 the above-mentioned creditor applied to the Ljubljana Local Court for the judgment mentioned in paragraph 19 above to be enforced. On 5 June 2002 the court issued a writ of execution, ordering the seizure and sale of all tangible movable property of the applicant and six other members of L.E. It later revoked the writ in respect of Mr J. Za., Mr M. K. and Mr J. Zu., as they had died (see paragraphs 10, 12 and 17 above). At the request of the creditor, on 30 November 2004 the court expanded the writ, ordering the payment of the judgment debt by direct deduction from the earnings of the applicant and of three other members of L.E. The writ was served on the applicant on 22 December 2004.
25.  On 29 December 2004 the applicant lodged an objection to the writ, arguing that the Local Court had failed to establish his actual role in company L.E. or to acknowledge his status as a passive member (see paragraph 51 below), which would have exonerated him from liability for the debts of the company. He maintained that the creditor’s claim against the company had arisen before he had joined it. Moreover, the applicant was of the view that the onus was on the creditor to establish that he had been an active member of the company. Lastly, he applied for a stay of enforcement.
26.  In its judgment of 12 March 2005, the Ljubljana Local Court found that the onus of proving his status as passive member was on the applicant and that he had failed to prove that he had not been an active member of L.E. The court established that with his 11.11% share in the company, the applicant had enjoyed the rights of a minority member, and furthermore, he had been employed by the company and actively involved in its management since April 1993. In his capacity as acting director and later managing director, he had been authorised to act on behalf of the company. Moreover, even after he had resigned as managing director, he had still been active in the running of the company and had also signed the winding-up petition. Lastly, the court considered that, as a minority member, the applicant could have and should have proposed the appointment of a new director at a general meeting of the company, since pursuant to domestic law all companies had to have a director. For those reasons, the applicant’s objection was rejected. The court also dismissed the applicant’s request for a stay of enforcement, as he had failed to demonstrate that the enforcement would have caused him irreparable or serious damage.
27.  On 9 February 2006 the Ljubljana Higher Court rejected an appeal lodged by the applicant on essentially the same grounds as the first-instance court. It observed, inter alia, that the Constitutional Court had found the measure of lifting the corporate veil under the FOCA to be in line with the principle of the separation of a company’s assets from those of its members and thus consistent with the Constitution. The court considered it irrelevant whether the applicant had become a member of L.E. before or after the creditor’s claim had arisen. Having joined the company, he had assumed its assets as well as its liabilities. It further held that it was not decisive that the applicant had not remained a director of L.E. until the dissolution of that company. What was crucial was that the applicant had been actively involved in its management and that he had had the rights of a minority member pursuant to section 445 of the Companies Act 1993 (see paragraph 37 below). The court noted that, in contrast to section 6 of the Companies Act 1993 which required the creditors of a company to prove that a member of the company had abused the corporate form (see paragraph 34 below), the FOCA had introduced a “non-rebuttable” presumption that the members of a struck-off company were deemed to have undertaken joint and several liability for any outstanding debts of the company. In accordance with the Constitutional Court’s ruling, they could be exonerated from their personal liability only if they demonstrated that they were “passive members” of the company (see paragraphs 46 and 51 below). Lastly, the court took note of the fact that the applicant had indeed made a winding-up petition on behalf of L.E., but it considered this irrelevant because L.E. had at the time failed to make the required advance payment and the petition had therefore been rejected (see paragraphs 15 and 18 above).
28.  On 5 May 2006 the applicant lodged two constitutional complaints. In one of them, he complained that the decisions rendered in the strike-off proceedings against L.E. had been served on that company alone and not on him personally. In the other one, he complained about the outcome of the enforcement proceedings against him.
29.  On 31 January 2007 the Constitutional Court rejected the applicant’s complaint regarding the strike-off proceedings. The decision was served on the applicant on 5 February 2007. It found that the applicant lacked legal interest in challenging those proceedings, since L.E. had already been struck off from the court register. Consequently, even a positive outcome of the constitutional complaint could not improve the applicant’s position.
30.  On 9 July 2007 the Constitutional Court also rejected the complaint regarding the enforcement proceedings as manifestly ill-founded. It held that the lower courts had correctly applied the Constitutional Court’s criteria for differentiating between active and passive members to the applicant’s individual situation.
31.  In 2010 the judgment of 22 November 2000 was enforced in part by direct deduction from the applicant’s salary. On 23 September 2011 the applicant reached an out-of-court settlement with the creditor and paid the agreed amount. The enforcement proceedings against the applicant were terminated on 28 September 2011. In total, the applicant paid EUR 32,795 to the Slovenian Railways. It is not clear how much other members of L.E. have paid to the Slovenian Railways in this connection.