Vrhovno sodišče Republike Slovenije; 2020-05-22; A. A., B. B.; Cp 6/2020
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2020:CP.6.2020
Date: 2020-05-22
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82020SI0522(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of recognition of a foreign judgment resolved by the Vrhovno sodišče Republike Slovenije (hereinafter ‘the Supreme Court’).
A creditor initiated before the Okrajno sodišče v Postojni (hereinafter ‘the Court of First Instance’) a proceeding against its debtor (hereinafter ‘the plaintiff’) in which it sought recognition and enforcement of a decision issued by the Amtsgericht Euskirchen (Germany). The plaintiff requested the Court of First Instance to refuse the recognition according to Article 45(1)(b) of the Brussels I Regulation (recast) (1), according to which ‘the recognition of a judgment shall be refused where the judgment 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 Court of First Instance held that even if it would be true that the foreign judgment was given in his absence or that it was not served properly to him, it is essential that he was notified properly of that judgment during the enforcement proceedings in Slovenia. However, the plaintiff neither claimed nor provided any evidence that he would at any time challenge the disputed German judgment. He also neither claimed nor proved that he did not have such a possibility. Therefore, he cannot successfully rely on Article 45(1)(b) as the conditions laid down by this Article were not fulfilled.
Following the rejection, the plaintiff appealed to the Supreme Court alleging an erroneous application of the law by the Court of First Instance and a breach of procedural and constitutional principles. The German judgment given in his absence infringed on fundamental procedural principles - his right of defence and the adversarial principle. The recognition of such would be manifestly contrary to Slovenian public policy as foreseen by Article 45(1)(a) of the Brussels I Regulation (recast). The plaintiff also added that Article 45(1)(b) of the same Regulation must lead to the refusal of recognition.
The Supreme Court cited the case-law of the Court of Justice of the European Union and recalled that a refusal of recognition based on Article 45(1)(b) is possible only where a party proves that it had no opportunity to challenge the judgment in State of origin. In this case, the plaintiff was informed of the foreign judgment in the enforcement proceedings and therefore is still able to appeal against it in the State of origin. The plaintiff is obliged to exhaust all existing remedies in State of origin, otherwise he cannot rely on a refusal based on Article 45.
Neither constitutional principles were breached here. The fact that the plaintiff failed to make a proper statement in the proceedings was not a consequence of the court’s infringement of his human rights, but a consequence of his own conduct. The plaintiff, represented by a lawyer, could, with due diligence, have foreseen the full consequences of the provision in Article 45(1)(b).
Neither may Article 45(1)(a) (breach of public policy) be used as grounds for refusal. The public policy clause must be subject to a narrow and restrictive interpretation and must be applied only exceptionally, where the court of State of origin violates fundamental legal principles. In this case, it was proven that the law was applied correctly, so relying on the public policy clause is unfounded.
The appeal was held unfounded and rejected, and the first instance decision was upheld.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.