Vrhovno sodišče Republike Slovenije; 2009-06-18; Cp 17/2009
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2009:CP.17.2009
Date: 2009-06-18
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82009SI0618(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Vrhovno sodišče (hereinafter ‘the Supreme Court’), concerns the recognition in Slovenia of a German judgment.
The plaintiff applied to the Court of First Instance for recognition of a judgment delivered by a German court, which ordered the defendant to pay the plaintiff a specified sum. The Court of First Instance granted the application, but the defendant lodged an objection, which was dismissed.
The defendant appealed to the Supreme Court, arguing that the German judgment was based on an erroneous assessment of the evidence and that its recognition would be manifestly contrary to Slovenian public policy, as he had not been heard in the German proceedings despite being represented by a lawyer. The defendant also claimed that recognition was premature, since the German judgment was only an interim judgment and the proceedings before the German court had not yet been concluded.
The Supreme Court held that the recognition was governed by the Brussels I Regulation (1), as the proceedings in Germany had commenced after the Regulation entered into force. The grounds for refusing recognition are exhaustively listed in Article 34 of the Regulation.
Under Article 34(2), ‘a judgment shall not be recognised, where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so‘. The concept of ‘entering an appearance‘ must be interpreted autonomously under the Regulation and covers any defence directly aimed at contesting the claim. In the present case, the defendant, represented by a lawyer, had filed a reasoned response to the claim and had attended the hearing. He had therefore entered the proceedings within the meaning of Article 34(2) and could not rely on improper service or the alleged lack of opportunity to present his case as grounds for refusal.
As regards Article 34(1), according to which ‘a judgment shall not be recognised, if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought_‘ the Supreme Court emphasised that the notion of public policy within the meaning of the Regulation must be interpreted narrowly. Since the defendant’s right to be heard had not been violated, recognition of the German judgment did not breach Slovenian public policy.
The Supreme Court also noted that the defendant’s allegations of erroneous findings of fact or misapplication of substantive law were legally irrelevant. Pursuant to Article 36 of the Brussels I Regulation, ‘under no circumstances may a foreign judgment be reviewed as to its substance‘.
Finally, the Supreme Court recalled that, under Article 37 of the Regulation, a judgment need not to be final in order to be recognised. Although referred to by the defendant as an ‘interim judgment’, the decision of the German court was in fact enforceable and treated as a final judgment under German procedural law. It was also accompanied by a certificate issued pursuant to Article 54 of the Regulation, confirming its enforceability in Germany.
As none of the defendant’s arguments were upheld, the Supreme Court dismissed the appeal as unfounded and confirmed the decision of the Court of First Instance.
(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.