Višje sodišče v Ljubljani; 2015-11-25; II Ip 3702/2015
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2015:II.IP.3702.2015
Date: 2015-11-25
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82015SI1125(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerns counter-enforcement following the revocation of the certificate of enforceability of a European payment order.
The creditor (hereinafter ‘the defendant’) obtained enforcement in Slovenia based on a European payment order issued by an Austrian court. During the proceedings, the debtor (hereinafter ‘the plaintiff’) secured the revocation of the certificate of enforceability that order. As a result, the enforcement no longer had a valid legal basis.
The plaintiff then filed an application for counter-enforcement seeking restitution of the sum that had been recovered in enforcement. The Court of First Instance partially granted the application: it ordered the defendant to pay EUR 18 522.04 to the plaintiff (restitution of the amount unduly recovered) and to reimburse additional costs, but dismissed the part of the application concerning statutory default interest.
The defendant appealed, alleging procedural errors and a lack of jurisdiction under Article 1 of the Brussels I Regulation (1). The Court of Appeal rejected those arguments. It held that the decision rested on Article 68 of the ZIZ (2); there was no material procedural breach, and the reasons of the Court of First Instance were clear.
As regards jurisdiction, the Court of Appeal confirmed that although Article 1(2)(b) of the Brussels I Regulation excludes insolvency matters, that exclusion does not apply here: the alleged unjust enrichment occurred within the enforcement proceedings. The counter-enforcement procedure is functionally and directly linked to the enforcement procedure; therefore, only the court that dealt with the enforcement application is competent to decide the merits of counter-enforcement. Even if Austrian law were to provide for the exclusive competence of the Austrian insolvency court, the Brussels I Regulation prevails as the hierarchically superior instrument of unification.
Accordingly, the Court of Appeal dismissed the appeal insofar as it concerned the order to restitute EUR 18 522.04 and the order on costs, and struck out the appeal as inadmissible in the part concerning statutory default interest, since the defendant had no legal interest to challenge a decision that was in his favour.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Zakon o izvršbi in zavarovanju (Enforcement and Security Act).