Vrhovno sodišče Republike Slovenije; 2020-02-27; A. A., B. B.; Cp 7/2020
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2020:CP.7.2020
Date: 2020-02-27
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82020SI0227(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of recognition of a foreign judgment resolved by the Vrhovno sodišče Republike Slovenije (hereinafter ‘the Supreme Court’).
A creditor initiated before the Okrajno sodišče v Postojni (hereinafter ‘the Court of First Instance’) a proceeding against its debtor (hereinafter ‘the plaintiff’) in which it sought the recognition and enforcement of a decision issued by the Amtsgericht Euskirchen (Germany). The plaintiff requested the Court of First Instance to refuse the recognition according to Article 45(1)(b) of the Brussels I Regulation (recast) (1), according to which ‘the recognition of a judgment shall be refused where the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so’. The request was rejected since the plaintiff did not provide any evidence that he could not challenge the judgment in Germany, so the conditions set by the Brussels I Regulation (recast) were not met.
Following the rejection, the plaintiff appealed to the Supreme Court alleging an erroneous application of both substantial and procedural law by the Court of First Instance, and a breach of procedural and constitutional principles. The German judgment, when given in his absence, infringed the principle of contradiction and his right of defence as fundamental procedural principles. Then, pursuant to Article 45(1)(a) of the Brussels I Regulation (recast), the foreign judgment cannot be recognised because a recognition of a judgment given in breach of fundamental procedural principles would be manifestly contrary to Slovenian public policy. The plaintiff added that also Article 45(1)(b) of the same regulation must lead to the refusal of recognition.
The Supreme Court held as undisputed that the German judgment was given in the plaintiff’s absence and it was served to him only in the enforcement proceedings before the Slovenian Court of First Instance. However, the fact that he was notified of the judgment in the enforcement proceedings still provided him with an opportunity to invoke legal remedies in the State of origin. The initial breach of the principle of contradiction (in German proceedings) may be still remedied at a later stage (during the enforcement proceedings in Slovenia) by lodging an appeal in Germany.
The plaintiff was obliged to exhaust all existing remedies. The conditions laid down by Article 45(1)(b) must be read together, so when the plaintiff failed to commence the proceedings to challenge the judgment in Germany, then he cannot rely on a refusal based on that article. Nor may Article 45(1)(a) (breach of public policy) be used as grounds for refusal since it was proven that the law was applied correctly and in the sense of the principles on which the Brussels I Regulation (recast) is constructed. The case-law of the Court of Justice of the European Union also suggests that the grounds for refusing a recognition must be interpreted strictly since it constitutes an obstacle to the fundamental objectives of the Brussels I Regulation (recast) and therefore the public policy clause applies only exceptionally.
The appeal was held unfounded and rejected, 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.