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In the case Up-1134/18 of 12^th May 2022, ECLI:SI:USRS:2022:Up.1134.18, the Slovenian Constitutional Court addressed for the first time the issue of worker’s right to privacy at the workplace (during the performance of work). On the one hand, the worker can reasonably expect a certain degree of privacy in the workplace – on the other hand, the employer also has the right to supervise the worker under certain conditions (and in specific cases). The issue at hand is also directly related to civil procedural law, since the termination of the worker’s employment contract may be based precisely on evidence obtained by interfering with the worker’s right to privacy. Moreover, in subsequent proceedings before the employment tribunal (before which the worker challenges the termination of his employment contract), the question of whether evidence obtained by interfering with the worker’s right to privacy may be used in the court proceedings arises.

In the present case, the appellant alleged in her constitutional complaint that inadmissible evidence was used in the proceedings for the extraordinary termination of the employment contract and in the subsequent court proceedings. The evidence was obtained by means of covert investigative measures (covert video surveillance and a covert trap with marked banknotes) in violation of the legal norms on individual’s personal data protection. The appellant thus submitted that she was unlawfully monitored in the performance of her work, which constituted an interference with her right to privacy at work, protected by Article 35 of the Constitution. The appellant submitted that the court should have excluded from the case file the video and the detective’s report, which had been prepared in violation of the appellant’s constitutional rights (case Up-1134/18, para. 2).

The appellant unsuccessfully challenged before the lower courts the extraordinary dismissal of her employment contract, alleging that the employer had unjustifiably interfered with her right to privacy. The appellant allegedly took out 20 EUR from the patient’s drawer, which was foreign property, and stole it. The above was allegedly established by installing a recording device and a trap with marked banknotes in the patient’s drawer (case Up-1134/18, para. 1).

In the present case, the Constitutional Court thus dealt with the question of whether such an investigation at the workplace constituted a violation of the worker’s right to privacy under Article 35 of the Slovenian Constitution.

The Court concluded that there was an interference with the worker’s right to privacy. The next question was whether the interference with the worker’s right to privacy passes the proportionality test.

The Constitutional Court relied on the case law of the ECtHR, namely Barbulescu v. Romania (2017) and Lopez Ribalda and others v. Spain (2019), as relevant criteria for the assessment. The Constitutional Court summarises that in these cases, the ECtHR took into account the following as relevant criteria: workers’ information about the possibility of surveillance; the scope of the surveillance and the intensity of the interference with the right to privacy; the legitimate reasons for carrying out the surveillance; the possible existence of the possibility of surveillance by less invasive means; the extent of the consequences for the affected worker; and the existence of safeguards in the national legislation to prevent abuses. Importantly, these are only criteria for assessment and not exclusionary conditions. The Constitutional Court emphasises that if any of the above criteria are missing in the exercise of control – greater weight must be given to the safeguards arising from the other criteria (case Up-1134/18, para. 13).

As regards the criterion of information to the workers, the Court notes that the appellant was not informed in advance of the recording device and the cash trap in the drawer. As the information criterion is not met, the other criteria must consequently be given greater weight in weighing the proportionality of the interference (case Up-1134/18, para. 15).

Furthermore, the Constitutional Court found that in the present case, there were particularly justified legitimate reasons for the measure taken to monitor workers in order to detect the perpetrator of repeated thefts. The employer and the workers also had the duty to protect the rights of the protected persons. The measure was also appropriate, as the installation of a recording device and a cash trap in the drawer of a bedside locker is clearly a measure which can detect a thief (case Up-1134/18, para. 17).

Of particular importance was the Court’s assessment of whether the measure was necessary or whether less invasive measures could have been taken. The Court notes that the employer first attempted to report the cases to the police but was unsuccessful as the thefts continued. Having regard to the circumstances of the case, the Constitutional Court notes that no other equally effective means were available which would have protected the property and privacy of the patients in the same way, and which would have interfered to a lesser extent with the appellant’s right to privacy. Surveillance by supervisors or colleagues or overt video surveillance did not have the same chance of success in detecting a thief, given the way the thefts were carried out. Moreover, the covert surveillance was limited in space and time to the minimum extent possible. Therefore, the covert surveillance fulfilled the necessity requirement (case Up-1134/18, para. 18).

The surveillance was also proportionate in the strict sense. The fact that the recording device and the cash trap were placed only in the drawer of the patient’s drawer was relevant. Also, the device only started recording when it detected movement and stopped recording when it no longer detected movement. Therefore, it recorded only those persons who opened the drawer and kept recording them for as long as the drawer was open. It only recorded the area immediately in front of the opened drawer. Moreover, it is also relevant that the covert surveillance cleared other workers – who did not commit workplace violations – of suspicion (case Up-1134/18, para. 19).

Based on all the above, the Constitutional Court held that, in the circumstances of the present case, the gravity of the repeated thefts (infringements) outweighed the consequences of the interference with the right to privacy in the workplace. Consequently, the interference was not excessive, and there was no violation of the right to privacy under Article 35 of the Constitution (case Up-1134/18, para. 20). Consequently, the Constitutional court did not address the question of admissibility of the submitted evidence any further (since there was no violation of worker’s right to privacy).

Aljoša Polajžar, Young Researcher at the University of Maribor, Faculty of law

Written by prof. dr. Martina Repas, Faculty of Law, University of Maribor

The concept of civil and commercial matters is one of the main conditions to apply provisions of the 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[1] (Brussels I bis Regulation). This applies to the rules on international jurisdiction as well as the rules on recognition and enforcement of judgements.[2] The main framework of this condition is anticipated in Art. 1 which delimits the scope of the Brussels I bis Regulation:

“1.   This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).

2. This Regulation shall not apply to:

a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship or out of a relationship deemed by the law applicable to such relationship to have comparable effects to marriage;

b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

c) social security;

d) arbitration;

e) wills and succession, including maintenance obligations arising by reason of death.”

As already mentioned, in order to apply the provisions of the Brussels I bis Regulation the subject matter of the dispute should be civil or commercial one.[3] Accordingly, two matters should be distinguished: civil law matters that fall under the ambit of Brussels I bis Regulation, and public law matters which are excluded from its scope. The concept of civil and commercial matter is not defined in the Brussels I bis Regulation. However, it evolved in practice. The Court of Justice of the European Union (CJEU) gave numerous decisions[4] regarding the concept of civil and commercial matters where it established the uniform, autonomous and independent nature[5] of it. Therefore, the notion of civil and commercial matters should be interpreted, first, according to the objectives and scheme of the Brussels I bis Regulation and, secondly, to the general principles which stem from the corpus of the national legal systems.[6] In this context certain matters are excluded from its scope by reason of the legal relationships between the parties or of the subject-matter of the action.[7]  In the relationships between private law entities, there is no doubt as to the civil nature of such relationships. However, there might be doubts in relations involving public law entities (like states, municipals, etc.). With regard to the latter, it is necessary to examine whether public law entity acts in the exercise of State authority (acta uire imperii) rather as a legal entity acting like any other private legal entity (acta iure gestionis). If public entity acts in the exercise of State authority, Brussels I bis Regulation is not applicable. According to the CJEU’s decision in case Henkel,[8] a public authority exercises public powers if the act could only be carried out by the public authority, and not by a private person and thus not in the scope of ordinary legal rules which are applicable to relationships between private individuals. In case Baten the CJEU held that in order to establish whether a public authority exercises public power the basis and the detailed rules governing the bringing of an action need to be examined.[9] A typical example of an actum iure imperii is an action by injured party against a State for damages caused by the armed forces during the World War.[10] On the other hand, action by a public authority to recover overpayments made by a mistake in compensation to successors of landowners wrongly deprived of their land under the Nazi regime is not actum iure imperii and is, thus, in the scope of Brussels I bis Regulation.[11]

Sometimes parties invoke immunity from legal proceedings, which precludes the judiciary of one state from exercising jurisdiction in a legal action to which another sovereign state is a party.[12] Under customary international law, immunity from legal proceedings is not absolute but relative (the so-called theory of restrictive or relative immunity). It can be recognized only in the case of a dispute concerning the exercise of official authority (acta iure imperii), and not in the case of an acta iure gestionis.[13] In the latter case parties cannot invoke immunity, which means that provisions of the Brussels I bis Regulation apply.[14] Consequently, immunity and exercising of public powers overlap.

One such example of the invocation of immunity has recently been addressed by the CJEU. This is a matter of Supreme Site and Others.[15] In this case, the Supreme Companies supplied fuel to the international organization SHAPE (instituted by NATO) based in Belgium for the purposes of the ISAF[16] mission in Afghanistan. To this end, a special Escrow Account has been established to cover claims or other adjustments. The Supreme brought an action before a Netherlands court, claiming that certain amounts which SHAPE had not paid for the fuel supplied should be paid from the funds in the escrow account. SHAPE invoked immunity from legal proceedings. In parallel with this substantive proceeding, other sets of proceedings were initiated before that court, in which the court authorised the Supreme companies to levy an interim garnishee order on the funds deposited in the escrow account. SHAPE sought the annulment of this, invoking immunity from execution. Does this mean that SHAPE acted in the exercise of public authority, which means that the dispute does not fall within the scope of the Brussels I bis Regulation for the lack of being a civil or commercial matter?

First it has to be stressed that substantive provisions and the procedure for issuing interim and precautionary measures are interlinked. As already decided by the CJEU in cases de Cavel[17] and Reichert and Kockler,[18] the basis of the nature of the substantive rights which these measures seek to protect is a factor that determines, whether they fall in the scope of Brussels I Regulation. As already mentioned, person’s invocation of immunity does not automatically exclude the provisions of the Brussels I bis Regulation. To this regard, the principles of customary international law concerning the immunity of States or of bodies governed by private law must be observed. We must not overlook the fact that the immunity in case Supreme Site was invoked by an international organisation. However, the CJEU held that the case law regarding the immunity of States or bodies governed by private law can be transposed to the immunities of international organisations.[19] As a consequence, if a person has not exercised a public authority, the Brussels I bis Regulation applies.[20] Did SHAPE exercised a public authority considering that the fuel was bought for military purposes? Accordnig to the CJEU, the exercises of a public authority is not affected by the purpose of the supply of products.[21] The CJEU also referred to the legal basis and the detailed rules governing the bringing of an action. In a given case the basis for the action lied in the rules of ordinary law (in the Code of Civil Procedure). Consequently, neither legal relationship between the parties nor the basis and the detailed rules governing the bringing of an action in a given case were not regarded as such to show the exercise of public powers for the purposes of EU law.[22]

The decision of the CJEU in the case Supreme Site is another decision in a series of decisions given by the CJEU that affects the interpretation of the concept of civil and commercial matters and, therefore, the application of the Brussels I bis Regulation.

---

[1] OJ L 351, 20.12.2012, p. 1–32.

[2] The concept of civil and commercial judgements appears in some other “sister” EU regulations concerning private international law issues as well, like Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims (OJ L 143, 30.4.2004, p. 15–39).

[3] However, a test to apply the provisions of the Brussels I bis Regulation should not stop here, since some civil matters enumerated in Art. 1(2) are as well excluded from its scope.

[4] Cases 814/79, Ruffer, C-172/91, Sonntag, C-271/00, Gemeente Steenbergen v Luc Baten, ECLI:EU:C:2002:656 (Baten), C-266/01, Staat der Netherlanden, C-433/01, Bayern, and many others.

[5] See more Rogerson P. in Magnus U. and Mankowski P., European Commentaries on Private International Law, Brussels Ibis Regulation, Verlag Dr. Otto Schmidt, Köln 2016 (Rogerson in Magnus and Mankowski); pp. 60–63, Stone O., EU Private International law, Elgar European Law, Cheltenham 2010, pp. 26–29; Briggs A., Rees P., Civil Jurisdiction and Judgements, Norton Rose, London, 2005, pp. 46–51.

[6] Case 29/76, LTU Lufttransportunternehmen GmbH & Co. KG v Eurocontrol, ECLI:EU:C:1976:137, para. 3.

[7] Ibidem, para. 4.

[8] Case Henkel, Verein für Konsumenteninformation v Karl Heinz Henkel, ECLI:EU:C:2002:555.

[9] See Baten, para. 29; C‑406/09, Realchemie Nederland BV v Bayer CropScience AG, EU:C:2011:668, para. 39; C‑641/18, LG v Rina SpA and Ente Registro Italiano Navale, ECLI:EU:C:2020:349, para. 32 (Rina), C‑645/11 Land Berlin v Ellen Mirjam Sapir and Others, EU:C:2013:228, para. 34 (Land Berlin v Sapir), C‑49/12, The Commissioners for Her Majesty’s Revenue & Customs v Sunico ApS and Others, EU:C:2013:545, para. 35.

[10] See case C-292/05, Eirini Lechouritou and Others v Dimosio tis Omospondiakis Dimokratias tis Germanias, ECLI:EU:C:2007:102.

[11] See case Land Berlin v Sapir and Rogerson P. in Magnus and Mankowski, p. 64.

[12] Fox H., The Law of State Immunity, Oxford University Press, Oxford 2008, p. 5.

[13] See also case Rina, para. 58.

[14] See also case Rina, para. 58.

[15] Case C-186/19, Supreme Site Services GmbH and Others v Supreme Headquarters Allied Powers Europe, ECLI:EU:C:2020:638 (Supreme site).

[16] United Nations Security Council authorised the creation of the International Security Assistance Force.

[17] Case 143/78, Jacques de Cavel v Louise de Cavel, ECLI:EU:C:1979:83, para. 8.

[18] Case C-261/90, Mario Reichert, Hans-Heinz Reichert and Ingeborg Kockler v Dresdner Bank AG, ECLI:EU:C:1992:149, para. 32.

[19] Case Supreme site, para. 61.

[20] Ibidem, paras 62 and 63.

[21] Ibidem, paras 65–67.

[22] Ididem, paras 67–68.

Issues of recognition and enforcement of foreign judgments in the Russian Federation (hereinafter – the RF) are regulated by the Civil Procedure Code of the RF and the Commercial Procedure Code of the RF.  The former deals with the judgments delivered out of the majority of civil cases, in which typically an individual is involved (inc. succession, family, employment, consumers disputes. etc.), while the latter covers cases concerning the activity of undertaking engaged in economic activity (inc. bankruptcy, liquidation, corporate disputes, etc.).

Both Codes set rules according to which foreign judgments are recognized and enforced only if so stipulated by the international agreement, which the RF is a party to (art. 409 of Civil Procedure Code and art. 241 of Commercial Procedure Code).

There is no such agreement between the RF and the EU, moreover, Russia is not a party to the Hague Convention on Foreign Judgments in Civil and Commercial Matters of 1971. Nevertheless, bilateral agreements have been concluded between the RF and Spain[1], Cyprus[2] and a few other European countries. In addition, Russia is a party of several ‘sectoral’ conventions, e.g. the Convention on the Civil Aspects of International Child Abduction of 1980, the International Convention on Maritime Liens and Mortgages of 1993, which stipulate enforcement of judgments, rendered on these matters.

Rules on recognition and enforcement of foreign judgments in a case of existence a bilateral international agreement are quite similar to rules set out by the Hague Convention of 1971 mentioned above, as well as the European legislation on cross-border enforcement. Thus, the application should be filled by the creditor within 3 years after the judgment became final in the jurisdiction of origin to the court at the place of residence of the debtor, or if the place of residence is unknown – at the location of the debtor’s property (art.410 of Civil Procedure Code and art. of Commercial Procedure Code). In its latest case law, the Supreme Court of the RF pointed out an obligation of the lower courts to provide the creditors with all possible assistance in gathering evidence on the existence of the debtor’s property on the territory of RF.[3] The application shall be accompanied by the authenticated copy of the judgment, certificate of its finality (if so), evidence of proper service of the debtor with the subsequent translation into Russian language (art. 411 of Civil Procedure Code and art. 242 of Commercial Procedure Code). Grounds for refusal of recognition and enforcement are limited and includes the following: the judgment has not entered into force, the defendant was not properly notified of the dispute, Russian courts have an exclusive jurisdiction on a dispute, there is a pending case on the same subject matter and the same grounds between the parties, recognition and enforcement would be contrary to the public policy and so forth (art. 412 of Civil Procedure Code and art. of Commercial Procedure Code). Generally, review of the merits of the judgments is not allowed.

Without an international agreement recognition and enforcement is virtually impossible. Constitutional Court of the RF from time to time has tackled questions concerning an alleged violation of a constitutional right on judicial protection of rights and liberties by the refusal of recognition and enforcement of a foreign judgment in the absence of international agreement. It is repeatedly stated in its decisions[4], that a refusal in enforcement in abovementioned circumstances cannot be considered as a violation of a right on judicial protection, due to the fact, that applicants are not deprived of the judicial protection by other means, in particular, by resolution of a dispute in Russian courts.

However, commentators note, that without international agreement enforcement of a foreign judgment could be performed based on a principle of international comity and reciprocity.[5] Some authors state, that enforcement is possible based on the international agreements on the cooperation of general nature, e.g. Agreement on partnership and cooperation, established between the European Communities and their Member States and the Russian Federation of 1997.[6] Despite sporadic positive case-law, these approaches remain mostly theoretical.

Maria Sokolova, University of Maribor, Faculty of Law

[1] Agreement between the USSR and the Kingdom of Spain on legal aid in civil matter, signed in Madrid 26.10.1990.

[2] Agreement between the USSR and the Republic of Cyprus on legal aid in criminal and civil matters, signed in Moscow 19.01.1984.

[3] Judgment of the Supreme Court of the Russian Federation of 20.01.2020 № 305-ЭС19-17404 (26.03.2022)

[4] Decisions of the Constitutional Court of the RF of 17.07.2005 № 575-O-O, of 17.06.2013 № 890-O.

[5]   Bekeschenko, E., Lysenko D. Litigation and enforcement in the Russian Federation: overview. 2021. Available at: https://uk.practicallaw.thomsonreuters.com/5-502-0694?transitionType=Default&contextData=(sc.Default) (accessed 27.03.2022). Ivanova, T. recognition and enforcement of foreign judgments of the Russian Federation, Russian judge, 2019, № 3.

[6] Kostin, A. Legal grounds for the recognition and enforcement of foreign judgments of the Russian Federation. Statut, 2021

Technology can enhance access to justice by supporting interactive exchanges, including means of distance communication, dissemination of relevant information, designing wizards to guide parties, judges, enforcement agents and streamlining information necessary for carrying out the court or out-of-court proceedings. Information is of particular importance in cross-border disputes and has to be provided in a way that supports all involved subjects. The internet and dedicated platforms (e.g. the e-Justice Portal) can be important means for improving access to justice – both in court and out of court – by facilitating access to information.

That said, there is a concern to ensure that the enforcement title being enforced is clear and specifies precisely what enforcement measures can be taken. National legislative frameworks contain a clear definition of what is considered an enforceable title and the conditions of its enforceability.  Since an enforcement title is the legal basis for granting the right to enforce a claim and for carrying out enforcement proceedings, enforcement titles should be drafted in clear and comprehensible way, leaving no opportunity for misinterpretation.

The judgment must be rendered by a court of Member State to be recognized and enforced in other EU Member States. It is the principle of “legal certainty” that determines the importance of the specifically defined operative part of a judgment, which will serve as an enforceable title in the Member State addressed. It is necessary to take into account that enforcement agents are bound by the enforceable title and that the creditor may request from the debtor only what was decided by the title. This is also reflected in the Article 53 of the BIA, saying that “under no circumstances may a judgment given in a Member State be reviewed as to its substance in the Member State addressed«.

The various titles of enforcement demonstrates a considerable convergence as to the enforcement titles within the EU as well as specific particularities that seem to be linked to functionality issues pertaining to the legal systems in EU. Furthermore, contrasting enforcement systems and different responsibilities from the judicial system to an enforcement agent or institution in the enforcement procedures in Member States have consequences to the principle of mutual recognition. The diversity of enforceable titles and differences in systems of enforcement (e.g. court based, administrative, independent liberal professional) result in the lack of knowledge and understanding of different enforcement agents of particular enforcement procedures in single Member States.

The EN4s project addressed this information gap by making information on national enforcement titles available and accessible to interested parties. The project covered, namely: Austria, Croatia, Cyprus, Czech Republic, Germany, Lithuania, Netherlands, Poland, Portugal, Slovenia, Spain and Sweden. Collecting understandable information on enforceable titles from each jurisdiction was the first step of the project. The developed EN4s IT tools contribute to the better enforcement of judicial decisions by improving cross-border understanding in this respect. One of the fundamental aim of developed IT tools is to help practitioners understand foreign enforcement titles, which will certainly have a European transnational impact in the meaning that one of the fundamental aims is to help.

Developed oracle as IT tool for courts and enforcement agents that enhances exchange and access to information on enforceability of foreign titles as a step further in straightening the mutual trust among Member States.

With the use of IT tools enforcement authorities i.e. judges (and court staff), various types of enforcement agents and notaries, may gain valuable knowledge on foreign enforcement titles, especially the knowledge regarding the structure and concept of foreign enforcement titles.

The IT tool, named “Enforcement title oracle”, comprises of an interactive Enforcement title guide, Manual and Interest calculator. The Enforcement title guide enables professional users to identify specific enforcement titles from Member State of origin and navigate their particular points of interest, while being simultaneously provided with commentaries. This tool presents a classical set of instructions for enforcement authorities or enforcement agents dealing with enforcement titles from other Member states.

The IT tool represents a novel instrument for easy access to necessary information about enforcement procedures and as such represents a strong innovative element in the European perspective. As the end product it will function on the project website.

If the foreign judgment contains a condemnation to pay the interests, the enforcement authority is faced with the question of method for calculation of the foreign interests. However, when dealing with enforcement of a judicial decision from other EU Member States an enforcement agent cannot proceed to any measure regarding any foreign interests, if the judicial decision of the Member State of origin does not contain a precise condemnation to pay the interests. The calculation of interest will cause difficulties if the interest rate or interest period is not specified in the foreign judgment and certificate and the enforcement agents in EU Member States are confronted with question of foreign pre- and post-judgement interests in enforcement of judicial decisions given in other EU Member States. In this regard,   a purely practical problem of fixing the interest rate arises for enforcement judges or enforcement agents.   This problem was another motivation of the EU EN4s activities to contribute to the free circulation of enforcement titles in the EU. A very pragmatic approach to the solution is that the courts in the Member State include the exact description of the operative part or even at least in the statements of reason of methods applied for calculating the interest rate. In some countries the amount of default interest is, as a rule, fixed in the operative part of the judgment.

If a judgment creditor from Italy initiates enforcement in Slovenia, the Slovenian enforcement court has to calculate statutory default interest under Italian law in the process of authorising the execution. Under Italian law the judgment only refers to statutory default interest. Therefore, the enforcement court or agent needs a precise calculation formula to calculate the interests. The court decision form Member State of origin can only be more precisely defined for enforcement purposes if the foreign title contains sufficiently specific data on:

• the amount of (legal default) interest under the law of the country of origin, the costs of the procedure, the payment of tax, the time from which (default) interest begins to run or the currency of payment (open or dynamic enforcement titles);
• any necessary calculation is done on the objective basis of foreign laws, judgments or statistical documents.

If the foreign judgment and certificate contain only a reference to interest without an exact calculation or interest rate or period the enforcement authority is faced with the question of the method of calculation of the interest.

In this regard, another innovative tool developed as a result of the EN4s project is the interest calculator tool. This tool is prepared to show the output of exact numerical values on interest over debt, utilizing algorithms with correct and up-to-date values. The calculator provides a simple user interface for interest calculation based on the principal, date and state information. The interest calculator was developed based on national reports and analysis of the late payments interest calculation method in Slovenia.

Conclusion

Improving cross-border enforcement is not something than can easily be achieved through solely introduction of IT tools and minimum standards initiatives, because of the real and deep structural differences between national systems in EU. As conclusion, more should be done in the field of exchanges of good practices, which will contribute to the creation of shared EU legal culture. However, a progressive step was taken by development of EN4s IT tools and creating a common platform in which exchanges could take place even after the end of the EU EN4s project.

Prof. dr. Tjaša Ivanc, Faculty of Law, University of Maribor

The Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (HCCH 2019 Judgments Convention) is to become the legal facilitator of the circulation of judgments between Ukraine and the EU. For Ukraine, as a signatory, this Convention is a long-awaited “glimmer of light” on the settlement of civil and commercial cross-border disputes. Since 2002, Ukraine has been a signatory to the Convention on Legal Assistance and Legal Relations in Civil, Family, and Criminal Matters (the Chisinau Convention), which covers a similar range of relations, but only within the former CIS member states. Instead, the 2019 Convention does not contain restrictions on which states can accede to it (Art. 29 of the HCCH 2019 Judgments Convention). And what is very important right now – it is not CIS-centered.

In March 2020 Ukraine became the second country to sign the Judgments Convention, but it was not ratified and therefore the Convention did not enter into force. The ratification process will be significantly postponed due to the war. But the importance of this international treaty act cannot be overestimated – the 2019 Convention must be ratified at the first opportunity.

Note: As of today, decisions of foreign courts and international arbitration in Ukraine are recognized and enforced if it is determined by a ratified international treaty OR by the principle of reciprocity (Art. 81 of the Law of Ukraine “On Private International Law”). Ukraine has bilateral agreements on legal assistance in civil matters with Bulgaria, Greece, Cyprus, Latvia, Lithuania, Poland, Romania, the Czech Republic, and Estonia. Italy has a similar agreement with Ukraine, which was concluded during the Soviet era (but it still can be applied). Such bilateral agreements with Finland, Algeria, Yemen, and Austria (former bilateral agreements with the USSR) are also applied in Ukraine.
Ukraine has not concluded bilateral legal aid agreements with other EU countries, so the principle of reciprocity applies to them. The bilateral agreement between Ukraine and Great Britain on enforcement of judgments are in the area of criminal law, notably terrorism and drug traffic. Ukraine has bilateral agreements on legal assistance with other non-EU countries such as China, Moldova, Georgia, Azerbaijan, Turkey, South Korea, and many more.

As we can see, Ukraine has many bilateral agreements limited to assure enforcement of judgments in certain cases (civil, family, and criminal cases, extradition). It would be adequate to replace this fragmented pool of legal documents with multilateral agreements where possible.

Coming back to the main topic, it is important to say that despite its generally simple criteria and procedure, the 2019 Convention has a significant safeguard against the “automatic” recognition and enforcement of judgments from countries of origin that continue to be in the process of establishing the rule of law. Each state has the right to choose whether it wishes to establish bilateral relations under this Convention with a particular other State. This is an interesting political mechanism through which the growing popularity of the Convention will not be hampered by a certain distrust that may exist in the judicial systems of individual countries. The 2019 Convention does not apply to arbitration and related proceedings as this is covered by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention) which is also ratified by Ukraine.

Thus, the current regulatory framework for the enforcement of foreign court decisions in Ukraine is rather fragmented, and in some cases it is left to the wide discretion of the requested state (i.e. the state where enforcement is sought). So, we can conclude that ratification of this Convention would provide more legal certainty and ensure that Ukrainian court decisions certain civil and commercial cases are fully recognized and enforced abroad. Ukraine, in turn, will do everything to recognize and execute foreign court judgments. In short, signatory States like Ukraine should seek ratification as soon as possible. Therefore, a primary task for the Ukrainian government after the victory of our country is to ensure that such an important treaty becomes binding in Ukraine. Also, we need to set an example for other countries to accede to the Convention. To do this, it will be necessary to prove its effectiveness in practice. A lot of work lies ahead!

Marta Smyrnova, Maastricht University

The enforcement of judgments granting punitive damages poses an issue in (civil law) jurisdictions where such remedies are unknown. In the absence of an international treaty that facilitates the partial enforcement of punitive damages (cfr. the 2019 Hague Judgments Convention) the international public policy exception forms a central mechanism in many domestic recognition and enforcement rules. Thus, depending on the countries’ view on what the public policy exception entails, the answer to the question of whether or not the judgment is enforceable may differ. For this blog entry, the focus will be on the enforceability of punitive damages judgments in the Netherlands and the Dutch view on the public policy exception.

In August 2021, the Dutch Court of Appeal ruled on the enforcement of a foreign judgment including a punitive damages award. The case involved the sale of a horse.
In 1992, plaintiff (US citizen) bought a dressage horse from defendant (Belgian citizen). The horse stayed with defendant’s spouse, as the parties agreed that she was going to train the horse. After five years, plaintiff moved to the Netherlands and requested defendant to sell the horse, since she ended her career as an equestrian. Plaintiff expected to be able to sell the horse for an amount of approximately $500.000. Defendant would receive a 10% commission for the sale. In 1998, defendant sold the horse for an amount of $312.000. Originally, plaintiff did not agree with this price as it was far below the expected yield. After negotiating with both the defendant and the buyer, plaintiff agreed to the sale under the condition that defendant would waive his commission. Defendant agreed and transferred the amount of $312.000 to plaintiff. Later on, the plaintiff found out that defendant in fact sold the horse for an amount of $480.000. Plaintiff sued defendant for the United States District Court of the Middle District of Tennessee, seeking damages. The jury awarded plaintiff compensatory damages of $250.000, as defendant’s actions were found to be intentional, reckless, and fraudulent. In addition, the jury found that plaintiff was entitled to receive punitive damages from defendant amounting to $250.000.

After decisions were rendered in first instance and appeal, the case was brought to the Dutch Court of Appeal in ‘s-Hertogenbosch. The Court of Appeal ruled that the compensatory damages were compatible with compensation under Dutch law and could therefore be enforced. This was not the case for the punitive damages award, however. The Court of Appeal held that the nature of punitive damages (i.e. punishment and deterrence) is incompatible with the fundamentals of Dutch liability- and compensation law. According to Dutch law, an aggrieved party may only be compensated for the damages that were actually suffered. The compensatory damages are calculated by fictionally putting the injured party in the position which it would have been in without the damage-causing event. Furthermore, the Court stated that the objectives that can be linked to punitive damages (i.e. punishment of the liable person and generic prevention) do not belong within civil law (procedures), but rather in criminal law. The Court was also of the opinion that the punitive damages amounting to $250.000 were substantial compared to the amount awarded as compensatory damages. For these reasons, the Court of Appeal ruled that the punitive damages award was not enforceable as it is not in line with the Dutch public policy.

This case is in line with the prevailing view in the Netherlands that punitive damages are not compatible with public policy, because punitive damages go beyond compensating the aggrieved party for the damages that were actually suffered. Given the diametrical opposition of punitive damages with the Dutch liability- and compensation law, it is rather unlikely that this view will shift in the near future.

Written by Marielène Wertenbroek, Maastricht University

Even though enforcement procedure under the Brussels I Recast regime is undoubtedly a considerable step forward in pursuing simplified cross-border procedures, the participants in such proceedings regularly encounter foreign enforcement titles drafted in an unfamiliar language and form. While difficulties arising from the use of language can be overcome by translation, the unfamiliar structure of enforcement titles remains another significant source of possible confusion. It is true that in most cases, the information contained in the certificate should suffice for the competent authority in the Member State of enforcement to carry out enforcement without resorting to the enforcement title itself, and that Article 52 of Brussels I Recast further eliminates the need to re-examine the enforcement title by prohibiting the court of enforcement to review its substance. However, if the debtor decides to oppose enforcement, they – and the court of enforcement – will unavoidably have to face the foreign enforcement title itself. Deviations in the structure of national judgements and other enforcement titles could give rise to a situation where the information needed is hidden in a different part of the document, making it easy to miss or misinterpret, where such information is altogether omitted, making certain procedural acts difficult or impossible, or where such misplacement might result in different legal consequences than those intended by the court drafting the judgement (e.g., regarding res judicata). Therefore, the issue of divergent structure and substance of judgements drafted in different jurisdictions was one of the topics addressed within the EU-EN4S project.

The research focused on the comparison of national judgements in terms of their basic structure (division into elementary parts), as well as on some specific issues that might arise at a micro level (e.g. the inclusion of time-limits for voluntary fulfilment, the threat of enforcement, the value of the dispute, the assessment of procedural requirements, etc.). At a macro level, the analysis demonstrated that the formal structure of national judgements is remarkably similar in all participating countries, regardless of whether the structural elements were determined by legislative provisions or have developed through the judicial practice. While the precise order and substance of these elements somewhat vary from jurisdiction to jurisdiction, such minor deviations are not expected to pose many difficulties for participants in cross-border enforcement proceedings. On the other hand, it is evident that the range of differences between judgements begins to increase once the focus is turned towards the more detailed aspects and more specific elements. While some of these distinctions reflect mainly aesthetic or practical conventions, without any significant legal effects (e.g., differences regarding the requirement to indicate the amount in dispute, the underlying legal relationship or the threat of enforcement), some other differences could cause more significant issues. Such is the case of different wording used in the operative parts of condemnatory judgements. While in some legal systems, the operative part explicitly states that the defendant is ordered or condemned (e.g. Croatia, Belgium, France, Germany, Italy, the Netherlands, Poland, Spain) to fulfil their obligation as determined in the judgement, there are several jurisdictions where the operative parts are phrased to read that the defendant is liable to pay a certain amount (or perform a particular obligation), giving the impression of a declaratory relief (e.g. in Albania, Austria, Bulgaria, the Republic of Cyprus, Lithuania, North Macedonia, Slovenia, Sweden). Within these jurisdictions, no problem seems to occur in practice, as it is clearly understood that the “liability” of the debtor means a duty to perform. However, a possibility cannot be excluded that such wording might lead to confusion in the context of cross-border enforcement, especially with participants who might not be familiar with the particularities of such phrasing, or even in the case of inaccurate translations arising from these differences.

All in all, it can be concluded that the structure and substance of enforcement titles are similar enough that major problems in this regard are not expected in most cases of cross-border enforcement, with some specific areas where there is still some room for improvement.

Katja Drnovšek, research and teaching assistant, University of Maribor, Faculty of Law

The Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession[1] (hereinafter: Succession Regulation)[2] has a broad scope. The Succession Regulation also lays down rules relating to the recognition, enforceability and enforcement of decisions, irrespective of whether such decisions were issued in a contentious or non-contentious way. Starting with the Article 3(1)(2) of the Succession Regulation, which defines a Member State of enforcement as the Member State in which the declaration of enforceability or the enforcement of the decision, court settlement or authentic instrument is sought. Article 40 of the Succession Regulation has four grounds on which non-recognition could be based (Article 40 of the Succession Regulation). Under no circumstances may a decision given in an EU Member State be reviewed as to its substance (Article 41 of the Succession Regulation). Following Article 43 of the Succession Regulation, a decision given in an EU Member State and enforceable in that State shall be enforceable in another EU Member State when, on the application of any interested party, they have been declared enforceable there. But, if a succession decision must be enforced in multiple EU Member States, appropriate enforcement proceedings of enforcement must be declared in each of them.[3]

The application procedure shall be governed by the law of the EU Member State of enforcement. It is not required for the applicant to have a postal address or an authorized representative in the EU Member State of enforcement (Article 46(1-2) of the Succession Regulation). The application for a declaration of enforceability shall be submitted to the court or competent authority of the EU Member State of enforcement (Article 45(1) of the Succession Regulation). Following the Inheritance Act[4] the territorial jurisdiction have in Slovenia the County Courts (okrožno sodišče) (Article 227.h(1) of the IA). The court will apply its national law. The application for a declaration of enforceability shall be accompanied by the following documents: a) a copy of the decision which satisfies the conditions necessary to establish its authenticity; b) the attestation issued by the court or competent authority of the Member State of origin using the form established in accordance with the advisory procedure referred to in Article 81(2), without prejudice to Article 47 of the Succession Regulation. If the mentioned attestation is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or dispense with its production if it considers that it has sufficient information before it. If the court or competent authority so requires, a translation of the documents shall be produced. The translation shall be done by a person qualified to do translations in one of the EU Member States (Article 47 of the Succession Regulation).

The decision shall be declared enforceable immediately on completion of the formalities in Article 46. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application (Article 48 of the Succession Regulation).

The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the EU Member State of enforcement. The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the decision, if not already served on that party (Article 49(1-2) of the Succession Regulation).

The decision on the application for a declaration of enforceability may be appealed against by either party. The appeal shall be lodged with the court communicated by the EU Member State concerned. The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters. An appeal against the declaration of enforceability shall be lodged within 30 days of service thereof. If the party against whom enforcement is sought is domiciled in a EU Member State other than that in which the declaration of enforceability was given, the time for appealing shall be 60 days and shall run from the date of service, either on him in person or at his residence. No extension may be granted on account of distance (Article 49(4-5) of the Succession Regulation).

The decision given on the appeal may be contested only by the procedure communicated by the EU Member State (Article 51 of the Succession Regulation). The court with which an appeal is lodged shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Article 40. It shall give its decision without delay (Article 52 of the Succession Regulation).

When a decision must be recognised, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the EU Member State of enforcement without a declaration of enforceability being required. The declaration of enforceability shall carry with it by operation of law the power to proceed to any protective measures. During the time specified for an appeal pursuant against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought (Article 54 of the Succession Regulation).

The Succession Regulation also deals with partial enforceability. Where a decision has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority[5] shall give it for one or more of them. An applicant may request a declaration of enforceability limited to parts of a decision (Article 55 of the Succession Regulation).

An applicant who, in the EU Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in any proceedings for a declaration of enforceability, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the Member State of enforcement (Article 56 of the Succeesion Regulation).

No security, bond or deposit, however described, shall be required of a party who in one EU Member State applies for recognition, enforceability or enforcement of a decision given in another EU Member State on the ground that he is a foreign national or that he is not domiciled or resident in the EU Member State of enforcement (Article 57 of the Succession Regulation).

In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the Member State of enforcement (Article 57 of the Succession Regulation).

[1] European Certificate of Succession is not a judicial decision nor an enforceable title and cannot replace national documents or procedures, but is rather a certificate with evidentiary value which reflects elements identified by the law applicable to succession (so and more see Ivanc, T. & Kraljić, S. (2016). European certificate of succession – was there a need for a European intervention?., Anali Pravnog fakulteta Univerziteta u Zenici, God. 9, br. 18, pp. 249-272.

[2] Official Journal of the European Union L 201/107, 27.7.2012.

[3] Aras Kramar, S. & Vučko, K. (2020). A Guide to the Implementation of the Succession of the Regulation (EU) No 650/2012 (Zagreb: Croatian Law Centre), p. 50 (available: https://www.notariesofeurope.eu/wp-content/uploads/2020/07/Guide-to-Succession-Regulation.pdf (last accessed: 13 March 2022).

[4] Inheritance Act (Slovene: Zakon o dedovanju – hereianfter: IA): Uradni list SRS, št. 15/76, 23/78, Uradni list RS, št. 13/94 – ZN, 40/94 – odl. US, 117/00 – odl. US, 67/01, 83/01 – OZ, 73/04 – ZN-C, 31/13 – odl. US, 63/16.

[5] In case E.E. (C-80/19) CJEU has ruled: “Article 3(1)(g) of Regulation No 650/2012 must be interpreted as meaning that, in the event that the referring court should find that Lithuanian notaries can be classed as ‘courts’ within the meaning of that regulation, certificates of succession that they deliver can be regarded as ‘decisions’ within the meaning of that provision, with the result that, for the purposes of issuing such certificates, those notaries can apply the rules of jurisdiction laid down in Chapter II of that regulation.”

Prof. dr. Suzana Kraljić, University of Maribor, Faculty of Law

Assessing the best interests of a child means to evaluate and balance “all the elements necessary to make a decision in a specific situation for a specific individual child or group of children”.

Today, the principle of the best interests of the child is a fundamental principle of children’s law – an area where law is intertwined with the child’s life.

The principle of the best interests of the child is one of the four overarching guiding principles on children’s rights (right to non-discrimination, best interests, the right to life, survival and development, and the right to participation or right to express views and have them taken into account).

A special reference to the best interests of the child is contained in Article 6 of the ECHR: European Convention on the Exercise of Children’s Rights (hereinafter “ECHR„),

• – Decision-making process In proceedings affecting a child, the judicial authority, before taking a decision, shall:
• a) consider whether it has sufficient information at its disposal in order to take a decision in the best interests of the child and, where necessary, it shall obtain further information, in particular from the holders of parental responsibilities;
• b) in a case where the child is considered by internal law as having sufficient understanding: – ensure that the child has received all relevant information; – consult the child in person in appropriate cases, if necessary, privately, itself or through other persons or bodies, in a manner appropriate to his or her understanding, unless this would be manifestly contrary to the best interests of the child; – allow the child to express his or her views;
• c) give due weight to the views expressed by the child.

The performance of parental duties must therefore be in the best interests of the child. However, parents work for the benefit of the child if they meet his material, emotional and psychosocial needs by appropriate behaviour.

The legal standard is individually adaptable and traceable to the needs of each child. In order to be able to give the most optimal content to this legal standard, in any case, it is necessary to take into account all the circumstances of the individual case.

The Slovenian court has wide discretion in defining the content of this legal standard. In practice it can use a number of subjective and objective reasons that have developed over the years in case law. The court must also follow the principle of proportionality, as the exercise of parental care and the obligations and rights arising from it primarily belong to the parents, who exercise them in accordance with the principle of autonomy. Parents therefore have priority over all others in the exercise of parental care. The basic premise is that parents act in the best interests of the child.

Anyone who disagrees either a natural person (e.g., a second parent) or a legal person (e.g., a public authority)) must challenge this legal presumption and prove it to the contrary with an appropriate standard of proof.

Current, short-term, as well as long-term benefits, should be considered when assessing what benefits a child. As a long-term benefit of the child, the court defined the ability of the parent to train the minor child for independent living and to provide him with such development that he will develop into a successful and responsible person. In assessing the best interests of the child, we can therefore speak of a subjective, discretionary test, which takes into account all the circumstances that affect the child in a particular case.

The principle of children’s benefits is a value criterion of each user (e.g., judge, professional worker of the center for social work, parent, child, doctor,…), which can be an individual (e.g., child) or a group (e.g., parents, siblings).

The preamble to the UN Convention on the Rights of the Child states that the family forms a fundamental social group and a natural environment for the development and well-being of children, and that a child must grow up in a family environment, in an atmosphere of happiness, love and understanding, for the full and harmonious development of his personality.

The child’s stay in a disordered home environment leads to the harm of children at all levels of functioning (relational, emotional, performance, and behavioural).

The social and family environment created by the child’s relatives, classmates, and friends are important for the child, as it influences the development of his social competencies.

The child’s age is crucial in defining a child’s social environment. In the case of a younger child (e.g., two years old), his social environment is primarily a family environment. The court (VSL sklep IV Cp 2075/2017) defined the relocation of the child from Slovenia to England as an important step for him, as not only would the school change, but the relocation of the child would change his entire social environment. A change in schooling can cause the child emotional problems or stress and crucially influence his sense of security.

One of the fundamental rights of the child is also the right of the child to express an opinion, which is covered by Article 12 of the UN Convention 1989. States Parties shall ensure that a child who is able to form his or her own views has the right to express them freely in all matters relating to him or her.

The weight of the opinions expressed is judged according to the child’s age and maturity. In particular, the child must be able to be heard in any judicial or administrative proceedings concerning him, either directly or through a representative or appropriate body, in a manner consistent with the procedural rules of national law.

Article 12 of the UN Convention on the rights of the child
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The principle of the best interests of the child therefore dictates the active involvement of the child in the planning of his or her activities and the decisions that concern him or her (e.g., assignment to care and upbringing, contacts,…).

The right to express an opinion does not necessarily mean the right to decide, which represents the highest possible degree of autonomy. However, it should not be overlooked that the right to decide also poses a certain danger, as it also means the right to make their own mistakes.

A child’s desire and benefit are not synonymous. What is the best interest of the Child is a legal concept that must be filled with content in each case, taking into account all the circumstances of the specific case.

• The law provides a reliable basis for a position on the importance of contact between a child and a parent with whom the child does not live.
• Thus, it explicitly stipulates that the right holders are both children and parents and that the contacts are in the best interests of the child (the first paragraph of Article 141 of the Family Code FC); defines the obligatory active participation of each of the parents in connection with the implementation of contacts with the other parent and the consequences of the violation of this obligation (second paragraph of Article 141 of the FC); withdrawal of contacts is envisaged only as a last resort (Article 173 of the FC).

The referring court states that the Judecătoria Buftea (Court of First Instance, Buftea) made its ruling taking into consideration the best interests of the child who has been living in Romania with her mother since the end of 2013,
where she attends a French school and is well integrated in her environment.
In terms of both language and culture, the child’s strongest links are with Romania.

The existence of a ‘particular connection’, within the meaning of Article 15(1) 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, does not necessarily prejudge whether a court of that other Member State is ‘better placed to hear the case’, for the purposes of that provision, or, if it is, whether the transfer of the case to that other court is in the best interests of the child. Case C‑530/18 Order of the Court of EU.

Urška Kukovec, Assistant to Secretary General, Faculty of Law, University of Maribor

Professor Eric Bylander and Associate Professor Marie Linton, Uppsala University, Sweden, have contributed to the collection of Final Expert Reports with the article titled “Types of Judgments according to Different Criteria”. The article explores the differences and similarities between the types of judgments in the projects’ participating Member States. It also proposes possible improvements in the Brussel 1 Regulation regarding how these discrepancies may be handled, and thus make the process of recognition and enforcement of cross-border judgments more efficient.

The article is based on the national reports that each partner has produced for the EN4CE project. However, a detailed description of each and every participating Member State has not been the objective of the article. Accordingly, Bylander and Linton write:

“The result can be compared to a map at a scale that allows a picture of the whole of Europe to fit on a book page like this. Such a map is difficult or even useless for navigation in a single European country, but it is certainly useful for studying overall relationships between different countries and regions.”

However, one striking similarity is the frequently found coherency between the divisions of judgments on the one hand, and the different types of decisions on the other – the former refers to a ruling on the main petition and the latter often to accessory claims or procedural matters. However, it is the content and effect of the decisions that are relevant for their classification and not how they are labelled by national courts.

For the purpose of the definition of “judgment” in Article 2 a) of the Brussels I Regulation, many types of what is nationally labelled as decisions are included. On the other hand, court settlements are not recognized as judgments under the Regulation even if confirmed by a court, see CJEU’s preliminary ruling in C-414/92 Solo Kleinmotoren GmbH.
Accordingly, Bylander and Linton suggest that it could be argued that the broad definition of “judgment” used in the Brussel I Regulation, in fact would correspond better to the more inclusive expression “decision”, in order to identify the broad variety of national decisions actually covered. Moreover, they suggest that the EU legislator should consider including court settlements in the concept of judgments in the Brussel I Regulation.
An over-all conclusion about the different types of national judgments and the Brussel I Regulation is that there are more similarities than discrepancies between the national orders of the Member States, but that the instrument could be enhanced for further improvement of the efficiency of the enforcement of cross-border judgments.

Nathalie Torneus Ek, Research assistant, Uppsala University