Višje sodišče v Ljubljani; 2019-05-09; II Ip 645/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2019:II.IP.645.2019
Date: 2019-05-09
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI0509(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of enforceability of a claim against an employer domiciled in Slovenia (hereinafter ‘the defendant’), which was resolved by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’).
The defendant’s former employee domiciled in Croatia (hereinafter ‘the plaintiff’) brought an action before the Okrajno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) seeking compensation for loss of earnings and a return to work. The Court of First Instance first dismissed the action by stating that the plaintiff brought the action after the time limit allowed for such action, but after plaintiff’s appeal, the Court of Appeal annulled that decision pointing to an erroneous counting of time by the Court of First Instance. Subsequently, the Court of First Instance granted the application and ruled that the defendant was obliged to pay EUR 797,42 to the plaintiff.
The present case concerns a defendant’s appeal to the obligation to pay the ordered amount. The defendant invoked Article 40 of the Brussels I Regulation (1) which provides that ‘the procedure for making the application shall be governed by the law of the Member State in which enforcement is sought’. The defendant also invoked a bilateral treaty between Croatia and Slovenia on cooperation in judicial matters, which implies the application of the law of Slovenia. That national law was Article 231 ZIZ (2) which stipulates that an employee may lodge an application for enforcement within six months from the date on which he/she acquired the right to do so. However, the plaintiff failed to file the action within this limit. The defendant further alleged that the plaintiff was disabled and was already a retired person without a valid work permit, not even living in the territory of Slovenia, so the action requesting a return to work cannot be successful, as it does not have enforceable title.
The Court of Appeal considered the defendant’s reference to the Treaty between Croatia and Slovenia unfounded, because after the accession of both countries to the European Union, the Brussels I Regulation became supreme to national law. The defendant's conclusions arising from application of Article 40 of the Brussels I Regulation were also found erroneous. The national law referenced by this Article was not Article 231 ZIZ, but Article 42b ZIZ instead, according to which the procedural rules were applied correctly in this case. With regards to the other defendant's objections concerning the plaintiff (such as his disability), the Court of Appeal recalled that they cannot be subject of review in an appellate procedure, since the defendant did not raise them within its statement of opposition against the request at first instance proceedings, but only as a grounds for appeal against the first instance decision. The objections alleging a lack of enforceable title were also held unfounded, because national Slovenian law provides an option to obtain a working permit and the mere fact that the plaintiff is a Croatian citizen does not affect it.
The Court of Appeal upheld the first instance decision and dismissed the appeal.
(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 Insurance Act).