Višje sodišče v Ljubljani; 2019-07-17; IV Cp 1317/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2019:IV.CP.1317.2019
Date: 2019-07-17
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI0717(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns a dispute over rights of custody, the maintenance of and the rights of access to a child resolved by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’).
The mother of the child domiciled in Slovenia (hereinafter ‘the plaintiff’) brought a case before the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) seeking sole custody over the child. The Court of First Instance ascertained that the plaintiff and father of the child domiciled in Germany (hereinafter ‘the defendant’) had already reached a custody agreement before the Berlin Youth Office and therefore the action was dismissed.
The plaintiff appealed the first instance decision arguing by several facts according to which she was misled by the defendant and the conclusion of the custody agreement was manipulated. She did not understand German language and believed that it was only an agreement allowing emergency health care for the child in Germany, not the permanent arrangement of custody rights. She also cited the ZMZPP (1) which explicitly requires a foreign decision, in order to have legal effects, to be recognized, but the Court of First Instance failed to do so.
The Court of Appeal asserted that both Germany and Slovenia are Member States of the European Union, therefore the new Brussels II Regulation (2), not the ZMZPP must be applied to this case. This Regulation provides definitions of what the term ’court’ shall cover (Article 2(1)) and what the term ‘judgment’ shall mean (Article 2(4)) for the purposes of this Regulation. The custody agreement in question approved before the Berlin Youth office complies with all requirements laid down by this Regulation to consider it as judgment issued by a court within the meaning of the Regulation. Pursuant to Article 21 of the new Brussels II Regulation, ‘a judgment given in a Member States shall be recognised in the other Member States without any special procedure being required’. Neither are there grounds for the non-recognition of this agreement on the basis of Article 23 of the Regulation. The Court of Appeal further refused the plaintiff's assertions of the misleading conclusion of the custody agreement, since the presence of a translator during the signing was proven and, after the translation, the plaintiff had personally signed a statement that she had understood the legal consequences of the agreement.
The existing custody agreement was thereby regarded as a judgment and the Slovenian courts cannot decide on the same matter again due to principle of res judicata. The custody agreement, as any other judgment, can be subject to amendment, but the plaintiff was not seeking an amendment, but sought a brand new judgment in her favour.
The Court of Appeal dismissed the appeal and upheld the first instance decision.
(1) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(2) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.