Vrhovno sodišče Republike Slovenije; 2008-04-15; Cpg 1/2008
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2008:CPG.1.2008
Date: 2008-04-15
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82008SI0415(51)_ENG_SUMJURE
JURE summary
JURE summary
The decision whose recognition is sought is undoubtedly a measure of a provisional nature. As it does not expressly state that the jurisdiction to issue it was based on any provision of the Brussels I Regulation (1), it must be assumed that it was issued under the jurisdiction rules of Italian law. Article 31 of the Brussels I Regulation expressly permits this, allowing provisional measures to be ordered under the law of the Member State of origin, even outside the jurisdiction rules set out in the Regulation for the main proceedings.
However, recognition of such a measure, where jurisdiction has been established in this way (unlike in cases where jurisdiction to issue a provisional measure is derived a maiori ad minus from jurisdiction under the Brussels I Regulation to decide the substance of the case) may be subject to limitations. This applies in particular where the claims for provisional and substantive protection are identical. The present case is an example of this, as it is inconceivable that the provisional measure, on the one hand, and the claim and decision on the merits, on the other, would be inconsistent.
Unrestricted recognition in such situations could circumvent the rules on jurisdiction to determine the substance of the case and could result in provisional protection seemingly becoming a permanent settlement of the disputed relationship. For this reason, the Court of Justice of the European Union has established certain limitations in its case law. In the present case, the decisive criterion, according to the Vrhovno sodišče (hereinafter ‘the Supreme Court’), is whether there is a real connection between the content of the provisional protection sought and the jurisdiction of the court called upon to grant that protection.
Evidently, a measure intended to eliminate interference can only be enforced within the territory where the alleged source of interference is situated – that is, within the Republic of Slovenia. However, the Supreme Court notes that the order whose recognition is sought is not expressly limited in duration and contains no restrictions to ensure that the disputed relationship is regulated merely on a temporary basis. Furthermore, it does not appear that the interests of both parties have been considered in the event that the plaintiff were to fail in possible proceedings on the merits against the defendant. The Supreme Court therefore finds that the actual connection between the Italian court and enforcement within Slovenia is too weak for the order whose recognition is sought to be considered a judgment otherwise eligible for recognition under the Brussels I Regulation.
(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.