Vrhovno sodišče; 2021-03-17; Cp 6/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2021:CP.6.2021
Date: 2021-03-17
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82021SI0317(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns the declaration of enforceability of a foreign judgment regulating the right of access to a child, addressed to the Vrhovno sodišče Republike Slovenije (hereinafter ‘the Supreme Court’).
The father of the child domiciled in Italy (hereinafter ‘the plaintiff’) applied before the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’). He requested the declaration of the enforceability of two Italian divorce judgments in part concerning the right of access to the child. The Court of First Instance invoked the provisions of the new Brussels II Regulation (1) and granted the application. It declared the Italian judgment enforceable in Slovenia and dismissed the objection to the declaration raised by a child’s mother (hereinafter ‘the defendant’).
The defendant appealed to the Supreme Court requesting to annul the first instance decision alleging that granting the declaration of enforceability would manifestly breach the Slovenian public policy due to procedural infringements during the Italian proceedings.
The Supreme Court cited Article 41(1) and (2) of the new Brussels II Regulation, according to which ‘the rights of access […] granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin […] using the standard form in Annex III’. The Supreme Court also pointed to Article 40(2) of the Regulation, which allows the plaintiff to apply for a declaration of enforceability even if Article 41(1) states there is no need for such a declaration. In the present case, the plaintiff expressly requested a declaration of enforceability, attached the original and a translation of the foreign judgment and the certificate in the form set out in Annex III of the Regulation. The Supreme Court considered that the conditions laid down in the Regulation had been duly complied with.
The Supreme Court found no grounds set out in Article 23 of the new Brussels II Regulation to refuse the recognition. The Supreme Court recalled that the court of the Member State of enforcement could not oppose the foreign proceedings when a certificate of enforceability was issued. The system for recognising and enforcing judgments is based on mutual trust between the Member States. Once the Member State of origin issues the certificate of enforceability, it shall be respected. Moreover, the decision of the Italian court not to hear the child, to which the defendant mainly objected, does not contradict the fundamental principles of Slovenian procedure either. According to the Slovenian procedural law, the court obtains only the views of the child who can understand the meaning of the proceedings (the child was 3-6 years old during the Italian proceedings).
The Supreme Court found the appeal not well-founded. Neither has it found any procedural infringements of its motion. Consequently, the Supreme Court dismissed the appeal and upheld the contested decision.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.