Višje sodišče v Ljubljani; 2017-06-29; I Cp 1518/2017
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2017:I.CP.1518.2017
Date: 2017-06-29
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82017SI0629(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a dispute brought by the Republic of Slovenia (hereinafter ‘the plaintiff’) against several defendants. The centre of the dispute was the seizure of assets of illegal origin, specifically the immovable property owned by some of the defendants and located in Croatia. The action was brought on the basis of ZOPNI (1).
The Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) declared the lack of jurisdiction of the Slovenian courts citing Article 24(1) of the Brussels I Regulation (recast) (2), which provides that ‘in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated’ shall have exclusive jurisdiction.
The plaintiff appealed the decision alleging that it would be unsustainable if a State would not have an option to intervene against assets located abroad. Article 48 of the ZOPNI foresees the international cooperation needed for freezing or seizing the property, which shall be carried out on the basis of international agreements or legal acts of the European Union. The plaintiff alleged that application of the Brussels I Regulation was completely unfounded since the regulation applies only in civil and commercial matters.
The Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) stated that the proceedings brought on the basis of the ZOPNI have a specific nature, where the provisions of the criminal law (financial investigation) as well as of civil law (freezing or seizure of the property) are applicable. It is not a procedure ad personam, but a procedure ad rem instead. The legal basis of such claim is the illegal acquisition of property and the legal consequence is the transfer of ownership of the property to the state. The claim represents a state’s measure by which the state seeks to prevent the use of illegal assets for further unlawful conduct. Such claim has an unambiguous public character.
The Court of Appeal further cited Article 1 of the Brussels I Regulation (recast), according to which ‘it shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)’. The proceedings initiated on the basis of ZOPNI, such as the present case, are excluded from the application of this Regulation, since they have a public character and do not fall under scope of this Regulation. Such proceedings cannot be subsumed under the concept of ‘proceedings which have as their object rights in rem in immovable property’ as assumed by the Regulation. The plaintiff had a legitimate interest in obtaining a judgment on freezing or seizing the property abroad to be given a possibility to request its further recognition and enforcement in Croatia.
The appeal was granted, and the first instance decision was annulled. The Court of Appeal held that the judgment falls within the jurisdiction of the Court of First Instance, which is also competent to rule on provisional and protective measures with regards to the property in dispute.
(1) Zakon o odvzemu premoženja nezakonitega izvora (The Law on the seizure of assets of illegal origin).
(2) 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.