Višje sodišče v Ljubljani; 2021-10-27; IV Ip 1478/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2021:IV.IP.1478.2021
Date: 2021-10-27
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Slovenia

82021SI1027(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned an appeal against a decision issuing an interim injunction to secure a non-monetary claim relating to the division of matrimonial property, specifically business shares held in limited liability companies in Slovenia.
The plaintiff and the defendant, both Russian nationals who last habitually resided together in Switzerland, were parties to divorce and matrimonial property proceedings pending before the competent Swiss court. The plaintiff sought an interim injunction prohibiting the defendant from alienating or encumbering his business shares in four Slovenian companies. The Okrožno sodišče v Ljubljani (‘the Court of First Instance’) granted the proposal and rejected the defendant’s objection, request for security and request to terminate the proceedings.
The defendant appealed, arguing that the principles of lis pendens and res judicata precluded the present proceedings, citing a previously rejected request for an interim injunction and parallel proceedings before the court in Switzerland.
The Court of Appeal dismissed these objections. Regarding res judicata, it clarified that a prior refusal of a provisional measure does not preclude a new request based on changed circumstances. In this case, the plaintiff relied on new, objectively different facts that arose after the earlier proceedings, specifically the defendant’s breach of a partial settlement agreement.
Concerning international lis pendens, the Court of Appeal held that the Brussels I Regulation (recast) (1) did not apply because Switzerland is not a Member State of the European Union. Furthermore, the new Lugano Convention (2) was inapplicable because Article 1(2)(a) of that Convention expressly excludes matrimonial property regimes from its scope. Consequently, applying relevant provisions of the ZMZPP (3), the Court of Appeal found that the statutory conditions for suspending the Slovenian proceedings were not met, as the defendant had not requested a stay and, crucially, the Swiss interim measure had not been recognised in Slovenia. Under the ZIZ (4) and the ZMZPP, Slovenian courts have exclusive jurisdiction over enforcement and security measures regarding assets located within Slovenia, and a foreign interim order cannot bind Slovenian courts unless recognised.
Regarding applicable law, the Court of Appeal confirmed that Swiss law governs the matrimonial property regime. Under Swiss law, assets acquired during the marriage are presumed to be joint property unless proven otherwise. The plaintiff demonstrated with the required degree of probability that the business shares in Slovenia, all acquired during the marriage, formed part of the joint property; the defendant failed to prove that these assets were acquired gratuitously or by inheritance.
With respect to the requirement of ‘danger’ for issuing an interim injunction under Article 272 of the ZIZ, the Court of Appeal held that the plaintiff had established an objective risk that the enforcement would be rendered impossible or substantially more difficult, referring to the defendant’s dissipation of assets: attempted withdrawals of substantial sums, concealment of information, refusal to cooperate in valuing assets and transfers of shares to third parties. These actions constituted a concrete and objective danger to the future enforcement of the plaintiff’s rights.
The Court of Appeal also upheld the rejection of the defendant’s request for security under Article 275 of the ZIZ. The defendant failed to substantiate either the existence or the amount of the alleged damage that the interim measure might cause him, nor did he justify the requested security sum of EUR 1 000 000, particularly given that the shares in question constituted only a small fraction of his total assets.
Finally, regarding the justification of the interim measure, the Court of Appeal agreed that, although the Court of First Instance had instructed the plaintiff to file a lawsuit within three months, this was legally unnecessary under Article 277 of the ZIZ, as the main proceedings were already pending before the Swiss court. The plaintiff had sufficiently demonstrated that the Swiss proceedings encompassed the claim for the division of the Slovenian business shares.
The Court of Appeal therefore dismissed the appeal as unfounded and upheld the decision of the Court of First Instance.
(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 (recast).
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(4) Zakon o izvršbi in zavarovanju (Enforcement and Security Act).