Višje sodišče v Ljubljani; 2019-07-10; I Cp 628/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2019:I.CP.628.2019
Date: 2019-07-10
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI0710(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, decided by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the international jurisdiction of Slovenian courts to issue provisional measures securing claims arising from the division of common property of former non-marital partners, including assets located abroad.
The plaintiff sought interim measures before the Court of First Instance prohibiting the defendant from alienating or encumbering immovable property, bank accounts, securities and gold situated in Slovenia, Austria, Croatia and Switzerland. The Court of First Instance initially granted the measures, but partially revoked them following the defendant’s objection, holding that Slovenian courts lacked jurisdiction to order measures affecting assets located abroad and revoking the injunction in respect of a domestic bank account for lack of proof.
On appeal, the plaintiff relied on the Regulation concerning matrimonial property regimes (1) and the ZMZPP (2). The Court of Appeal confirmed that the Regulation was inapplicable ratione temporis, as it applies only to proceedings instituted on or after 29 January 2019, notwithstanding the earlier Council decision authorising enhanced cooperation.
However, the Court of Appeal held that the Court of First Instance had erred in declining jurisdiction under national law. Under Articles 50 and 53 of the ZMZPP, Slovenian jurisdiction was not excluded: both parties were Slovenian nationals resident in Slovenia, no exclusive foreign jurisdiction existed, and the defendant had tacitly accepted jurisdiction by failing to raise a timely objection. The Brussels I Regulation (recast) (3) was inapplicable by its own terms, so jurisdiction fell to be assessed exclusively under national law.
The Court further clarified that the requested measures operated in personam, restraining the defendant’s conduct, rather than constituting enforcement acts abroad. Any uncertainty regarding the recognition of such measures in foreign states affected their effectiveness, not the jurisdiction to issue them.
As regards the domestic bank account, the Court found that the plaintiff had sufficiently demonstrated its existence, while the defendant had failed to discharge his evidential burden.
Accordingly, the Court of Appeal partly upheld the appeal, reinstated the provisional measure concerning the domestic bank account, annulled the decision concerning foreign assets, and remitted the case for substantive examination of the remaining conditions for issuing the provisional measures.
(1) Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.
(2) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(3) 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 (recast).