Disgorgement of Profits in Slovenian Law

Abstract

In Slovenian law, complete disgorgement of profits is possible only in criminal and administrative law (via public enforcement, to the benefit of the state budget), but generally not in private law (via private enforcement, to the benefit of the plaintiff). The scarce case law indicates that seizure of benefits gained by criminal act or minor offense rarely occurs in practice. An easier to apply functional equivalent of the disgorgement of profits is monetary penalty (when prescribed). In tort law, wrongfully gained profit may be disgorged by way of a damages claim only to the extent that it represents legally relevant damage (lost profit) of the wronged person. It would seem that tort law is more concerned with preventing the wronged party from getting more in damages than its damage (loss) amounts to, than it is with preventing the wrongdoer from keeping profit gained by wrongful infliction of damage (and exceeding the “loss” of the wronged party). An exception applies to infringements of copyright where damages may be multiplied to up to three times the actual damage. In contract law, the damages are generally limited by foreseeability, but this limitation does not apply in cases of intentional or reckless breaches, which can be seen as a way of preventing (profitable) breaches and achieving some extent of disgorgement of profits.