Vrhovno sodišče Republike Slovenije; 2019-02-21; Cp 42/2018
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2019:CP.42.2018
Date: 2019-02-21
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI0221(52)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of the admissibility of recognition and enforcement proceedings of a foreign judgment resolved by the Vrhovno sodišče Republike Slovenije (hereinafter ‘the Supreme Court’).
There was a dispute between a natural person domiciled in Slovenia (hereinafter ‘the plaintiff’) and a company domiciled in Austria (hereinafter ‘the defendant’). Following a European order for payment issued in Austria by the Bezirksgericht Klagenfurt to the detriment of the defendant, the plaintiff applied before the Okrožno sodišče v Slovenj Gradcu (hereinafter ‘the Court of First Instance’) seeking the recognition and enforcement of that order. The application was granted. The defendant appealed against the decision on recognition to the same court, but the appeal was rejected.
The defendant further appealed to the Supreme Court arguing that the documents which instituted the Austrian proceedings were served only to a personal address (of a person who owns the company), not to the official business address of the defendant (as a company). The defendant invoked Article 45(1)(a) and (b) of the Brussels I Regulation (recast) (1) and claimed that the recognition would be manifestly contrary to Slovenian public policy and, moreover, that the Austrian judgment was given in default of his appearance.
The Supreme Court held that the fact that the service of the documents was not formally correct does not constitute a deprivation of the right to defence. No matter what the address was, by receiving the documents the defendant could become aware of the substance of the ongoing proceedings in Austria and therefore, he was sufficiently served with the documents to enable him to arrange for his defence. Subsequently, the fact whether the defendant had been served with the final Austrian judgment was not necessary to determine at all, since the wording of Article 45(1)(b) clearly provides that judgment given in default of defendant’s appearance shall be reason for refusal of recognition only in conjunction with a situation where the defendant was neither served with the documents which instituted the proceedings, which was proven as unfounded in the present case.
With regards to the alleged breach of Slovenian public policy, the Supreme Court pointed to the case-law of the Court of Justice of the European Union according to which this argument may be applied only in cases of a manifest breach of the fundamental legal principles of the Member State addressed. Deprivation of the right of defence might be such reason. However, the Supreme Court held that the wording of the Brussels I Regulation (recast) is clear that even if the judgment had not been indeed served to the defendant in the Member State of origin, it would be served to him in the enforcement proceedings, so he would be informed of the foreign judgment at least in the enforcement proceedings. Then he still is capable of an appeal against it in the Member State of origin pursuant to Articles 38 and 51 of the Brussels I Regulation (recast) and the enforcement proceedings may be then stayed. The situation as in the present case can be therefore regarded neither as deprivation of the right of defence nor as a manifest violation of Slovenian public policy.
The Supreme Court confirmed the conclusions of the Court of First Instance and found no other grounds on which the first instance decision should be modified. The appeal was dismissed, 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.