Vrhovno sodišče Republike Slovenije; 2011-01-31; Cp 7/2010
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2011:CP.7.2010
Date: 2011-01-31
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82011SI0131(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Vrhovno sodišče (hereinafter ‘the Supreme Court’), concerns the recognition in Slovenia of a judgment delivered in Poland.
The Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) granted the plaintiff’s request to recognise a maintenance judgment issued by a Polish court. The Court of First Instance also dismissed the defendant’s objection that he had not been properly served with the judicial documents in Polish proceedings and rejected his proposal to give testimony on that issue.
The defendant appealed to the Supreme Court, arguing that he had been unable to participate in the Polish proceedings because he had never lived at the addresses to which the Polish court had sent the documents. His address in Ljubljana was known, but the Polish court served the documents on an assigned representative in other proceedings (divorce).
The plaintiff responded that the defendant was aware of the maintenance proceedings, as these followed the divorce proceedings, of which the defendant had been informed.
The Supreme Court cited the transitional provisions set out in Article 66 of the Brussels I Regulation (1) and held that the matter shall be governed by the Regulation and not by the ZMZPP (2). The defendant correctly invoked one of the reasons for non-recognition provided by the Regulation: irregular service of documents pursuant to Article 34(2).
The Polish court appointed a representative for the defendant, claiming that his place of residence was unknown. However, the Polish court and the plaintiff both had information indicating that the defendant’s address was in Ljubljana. According to the Supreme Court, the conditions for appointing a representative were not met and consequently, serving the documents only to the representative was incorrect. The procedural rules allow for various forms of substitute or fictitious service. However, neither Slovenian nor Polish law recognises the fiction advocated by the plaintiff, namely that it is sufficient for a party to the proceedings to be aware that proceedings are taking place in another case.
The Supreme Court held that the Court of First Instance failed to establish the relevant facts that would allow it to conclude that the formal condition for recognition had been met. The Court of First Instance did not adequately explain why it rejected the defendant's proposal to submit evidence of its lack of awareness of the Polish proceedings.
The appeal was upheld, the contested decision was set aside, and the case was referred back to the Court of First Instance for further proceedings.
(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.
(2) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).