Status of Digitalisation of ESCP Enforcement Procedures
As ZPP is used mutatis mutandis in enforcement procedures, unless otherwise provided (Article 15 of ZIZ), an electronic form is deemed to be equivalent to a written form if the information in electronic form is suitable for processing by the court, accessible and suitable for subsequent use (Article 16.a ZPP). Furthermore, electronic data shall not be denied probative value merely because it is in electronic form.
Several judicial procedures in Slovenia are already digitalised and automatised, among them is the claim enforcement procedure. The enforcement request can either be submitted electronically (through the portal eSodstvo) or sent to the competent court in written form.
Only users who are logged in to the eSodstvo[1] (eJustice) portal as externally qualified users may file an enforcement request on the basis of an enforceable title by selecting the electronic application 012 (Enforcement request on the basis of an enforceable title), duly completing, signing and submitting it. To register as an external qualified user, one must have a Slovenian national identification number, a Slovenian tax number and a secure electronic mailbox.
An act governing electronic communications is also Pravilnik o obrazcih, vrstah izvršb in poteku avtomatiziranega izvršilnega postopka (Rules on forms, types of enforcement and the automated enforcement procedure)[2].
ESCP Procedural Aspects
1. Competent Enforcement Authority
Jurisdiction over enforcement rests with the Local courts (Article 5 of the Enforcement and Securing of Civil Claims Act – Zakon o izvršbi in zavarovanju, hereiafter: “ZIZ”).12 A specific division of the Local courts is dedicated to enforcements. Pursuant to Article 6 of ZIZ, the enforcement procedure is conducted by a single judge.
2. Rules on Service
Articles 132 – 150 of ZPP govern the serving of documents referred to in Article 5(2) and (6) and judgments handed down under Article 7.
Pursuant to Article 132 ZPP documents can be served according to various methods – post, secure email, bailiff, in the court or in another manner provided by law (service by a legal or natural person who serves documents professionally). Documents are serviced during the day between 6.00 and 22.00, or 24 hours a day by email (Article 139(1) ZPP).
The court may, on application by the other party, order the documents to be served by a detective or bailiff nominated by the party. The costs of such service shall be borne by the applicant for such service (132(2) ZPP).
3. Language of the Certificate and Documents to be Appended
The official languages in court proceedings are Slovenian as well as the two national minority languages in official use at the courts in the areas where these national minorities live (Articles 6 and 104 ZPP). The national minority languages are Italian and Hungarian.Pursuant to Article 5 of the the Establishment of Municipalities and Municipal Boundaries Act (Zakon o ustanovitvi občin ter o določitvi njihovih območij, hereinafter ‘ZUODNO’[3]), mixed-nationality municipalities are those identified as such by the current statutes of Lendava, Hodoš-Šalovci, Moravske Toplice, Koper, Izola and Piran municipalities.
4. Enforcement Fees
A court fee must be paid when filing an enforcement request, as well as when filing an objection to or an appeal against enforcement (Article 29.b of ZIZ). It must be paid within 8 days after the payment order for the court fee is served (Article 34 ZST-1). The court fee is 55 EUR (ZST-1). If the court fee is not paid within the time limit and in accordance with the payment order and the conditions for exemption, deferment or payment in instalments of the court fee do not apply, the enforcement request shall be deemed to have been withdrawn (Article 29.b of ZIZ). Court fees may be paid in cash, electronically or using any other valid payment method (Article 6 ZST-1). Court fees may be paid remotely, by bank transfer, credit or debit card payment or direct debit from the claimant’s bank account. Thus, parties can pay the court fees from any Member State. Court fees must be paid to the courts’ accounts specifically set up for the payment of court fees, as published on the websites of the various courts. Pursuant to Article 33.a(1) ZST-1, if a party files an application in electronic form (where that is possible), the court fee is reduced by 20 per cent, except as otherwise provided by ZST-1. Pursuant to Article 38 of ZIZ, the creditor pays the enforcement costs in the first place. The creditor shall advance the costs of the enforcement proceedings in the manner, amount and within the time limit fixed by the court. If the creditor fails to pay the advance within the time limit set, the court shall stay the enforcement proceedings. However, the debtor shall reimburse the creditor, at the latter’s request, for the costs incurred in the enforcement proceedings, including the costs of making enquiries concerning the debtor’s property, or for the costs of the ex officio proceedings. The creditor must reimburse the debtor or, at the request of the debtor, a third party, for enforcement costs unreasonably incurred by the creditor. Article 38 of ZIZ also states that unless otherwise provided by law, reimbursement of enforcement costs must be claimed as soon as they are incurred and their amount is known, but at the latest within thirty days after the end or the stay of the enforcement proceedings or the conclusion of the last enforcement action after which enforcement was not resumed, failing which the costs shall not be recognised. The court must decide on the costs within eight days of receipt of the request.
5. Refusal, Stay, or Limitation of ESCP Enforcement Procedures
Section 7 of ZIZ regulates the postponement and the termination of enforcement procedures. This is relevant to Article 23 of the ESCP regulation.
Thus, Article 71 of ZIZ describes the cases, in which a court may, on the debtor’s request, postpone enforcement in whole or in part if the debtor shows that it is likely that he would suffer irreparable damage by immediate enforcement and that this damage is greater than that which the creditor is likely to suffer because of the postponement. The relevant cases for Article 23 of the ESCP Regulation include:
– if the debtor has brought an extraordinary legal remedy against the decision authorising enforcement (see also “Review of the judgment procedure and courts competent to conduct such a review – Article 18 of the ESCP Regulation” supra),
– a restitutio in integrum motion is made in the proceedings in which the decision giving rise to the enforcement was given (see also “Review of the judgment procedure and courts competent to conduct such a review – Article 18 of the ESCP Regulation” supra),
– an action is brought to set aside a settlement agreement on the basis of which the enforcement was granted.
Critical Assessment
One of the identified problems with the ESCP enforcement procedure in Slovenia is the necessity that all documents be provided in the official language, i.e., Slovenian or Italian and Hungarian in the areas where these national minorities live (Articles 6 and 104 ZPP). Thus, the applicant cannot submit the Form D in any other language. A document in a foreign language must be accompanied by a certified translation (Article 226(1) of ZPP). Despite the possibility to have these costs reimbursed at the end of the proceedings, a certified translation raises the costs of the enforcement procedure significantly, especially considering the low value of the claim in ESCP.
Another identified problem is the difficulty of enforcing the ESCP judgements digitally. While a digital process of enforcement is available through the eSodstvo18 (eJustice) portal, one must register as an externally qualified user, which means one must have a Slovenian national identification number, a Slovenian tax number and a secure electronic mailbox. This means that for foreigners, enforcing an ESCP judgement can usually only be done in written form which complicates the procedure. Moreover, the entire eSodstvo portal is in Slovenian, thus complicating the process for parties who do not speak the language even further.
Since ESCP is used in cross-border disputes, it would be desirable to make the enforcement procedure easier for parties who do not speak Slovenian (or Italian/Hungarian). Otherwise, some of the practicality of ESCP is lost. The party can of course engage a professional (qualified lawyer) to help with the language and administrative barriers, but this once again raises the costs of the enforcement and thus goes against the idea of the ESCP.
[1] Available at: https://evlozisce.sodisce.si/esodstvo/prijava.html?type=kvalificiran.
[2] Official gazette of RS, nos. 104/11, 88/14, 44/16, 13/21.
[3] UL RS Nos 108/06 — official consolidated text and 9/11.