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The Requirements for the Issuance of an Interim Order – a Comparison of the Slovenian, Croatian, Austrian, and German Regulations

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The Requirements for the Issuance of an Interim Order – a Comparison of the Slovenian, Croatian, Austrian, and German Regulations Zbornik PFZ, 66, (1) 105-129 (2016) 105 THE REQUIREMENTS FOR THE ISSUANCE OF AN INTERIM ORDER – A COMPARISON OF THE SLOVENIAN, CROATIAN, AUSTRIAN, AND GERMAN REGULATIONS Assist. Neža Pogorelčnik Vogrinc, Ph. D.* UDK: 347.952.6:340.5(497.5:436:497.4) Izvorni znanstveni rad Primljeno: rujan 2015. Interim orders are important means to secure claims. Their value in practise depends on the statutory regulation of the requirements for their issuance and the- ir interpretation in case law. The most important condition for an interim order to be granted is the existence of a monetary or non-monetary claim – the object that is to be secured. The other requirement varies depending on the nature of the claim and in some countries also the aim of the interim order – the securing of future enforcement or a temporary regulation of the legal relation in dispute. The article presents different systems of the provisional securing of claims in Slovenia, Croatia, Austria, and Germany and compares the relevant requirements, the existence of which has to be demonstrated by the petitioner in order to succeed in securing the claim against the debtor. Keywords: interim order, claim, subjective or objective risk, damage difficult to repair, use of force 1. INTRODUCTION Interim orders are a means of securing claims. They secure a claimant’s claim, either by providing for successful enforcement of a final judgment, with a standard of probability confirming the existence of the claim, or temporarily regulate, usually until the end of the court proceedings or until the enforce- ment procedure, the legal relation in dispute. Most countries have some form of temporary protection, but the individual measures among them differ as to * Neža Pogorelčnik Vogrinc, Ph. D., Teacher Assistent, Faculty of Law, University of Ljubljana, Poljanski nasip 2, Ljubljana, Slovenia; [email protected] 106 N. Pogorelčnik Vogrinc: The Requirements for the Issuance of an Interim Order – A Comparison... the name, the requirements for their issuance, and their power and effects. At first sight, they might seem to be difficult to compare, but detailed research of the Slovenian, Croatian, Austrian and German regulations reveals that they have a great deal in common. 2. CLAIM In Slovenia interim orders (in Slovenian: začasne odredbe) are generally regu- lated by the Enforcement and Securing of Civil Claims Act (in Slovenian: Zakon o izvršbi in zavarovanju, “ZIZ”).1 Special acts2 envisage the application of these temporary measures in specific fields, but none of them includes a com- plete regulation. They usually only deal with aspects specific to a field and for the rest refer to the general regulation. The regulation in the ZIZ is therefore very important and, in addition to the procedure for issuing an interim order and its effects, it also covers the requirements for such issuance. The ZIZ differentiates between interim orders to secure monetary claims and those to secure non-monetary claims. Other requirements for these two groups are different, but one is the same for both. The first and most impor- tant requirement for an interim order to be issued is the existence of a claim against the defendant. Without a claim there is nothing to secure and the proposal for interim relief is unfounded. That requirement was already deter- mined in the predecessor of the ZIZ, the Yugoslavian Zakon o izvršilnem postopku (The Enforcement Procedure Act – ZIP)3 (Articles 265 and 267), but the ZIZ broadened its scope and made the petitioner’s position easier. Now he or she4 must demonstrate the existence of the claim or that the claim does not yet exist, but will soon arise (Articles 270/I and 272/I). The claim can therefore be secured even before it arises. The main reason for this statutory change lay in situations in which the claimant started proceedings for a declaratory claim (a claim requesting the finding of the existence of a right or legal relation) or a claim requesting the formation, modification or cessation of a right or legal 1 Official Gazette of the Republic of Slovenia, No. 3/07 et seq. I will use acronyms deriving from the original names of the Acts, as those deriving from their English translations would be hard to distinguish one from the other. 2 I.e. The Marriage and Family Relations Act, Official Gazette of the Republic of Yugoslavia, No. 15/76 et seq., The Non-Litigious Civil Procedure Act, Official Ga- zette of the Republic of Yugoslavia, No. 30/86 et seq. 3 Official Gazette of the SFRY, No. 20/78 et seq. 4 Hereinafter I will only use the form “he”. Zbornik PFZ, 66, (1) 105-129 (2016) 107 relation and the resulting successfully concluded court proceedings provided a condemnatory claim (a claim requesting payment, performance, or a cease and desist order).5 The latter could possibly also be cumulated in the first lawsuit in the event of the claimant’s success of the first claim. But because it was well established that the purpose of interim orders is to secure future enforcement, the claimant could only achieve the securing of a claim that could be an object of enforcement – a condemnatory claim. As a consequence, an interim order could not be issued for either a declaratory claim or a claim requesting the formation, modification, or cessation of a right or legal relation, because these cannot be objects of enforcement, nor of a condemnatory claim, considering that (before the declaratory claim or a claim requesting the formation, modi- fication, or cessation of a right or legal relation has been successful) it has not yet arisen.6 The debtor, realising that the claimant has filed or plans to file a lawsuit for a declaratory claim or a claim requesting the formation, modifica- tion, or cessation of a right or legal relation, could carry out certain actions to worsen the claimant’s prospects of effective enforcement of the condemnatory claim when it arises. The legislature has thus increased the possibility of secur- ing the claimant’s claim as soon as he succeeds in demonstrating the future existence of the claim that is to be enforced.7 At roughly the same time as when the ZIZ replaced the ZIP, the Constitu- tional Court of the Republic of Slovenia went beyond the former standpoint and decided that interim orders could not only secure future enforcement of a claim (security interim orders), but also regulate the legal relation in dispute and even regulate it in the same way as the petitioner would want to achieve with a lawsuit (regulatory interim orders), adding an important requirement of reversibility, i.e. whether it is possible to restore the earlier situation for the defendant if an interim order is issued and enforced, despite the petitioner’s claim being subsequently rejected.8 As a result of both changes, i.e. the decision of the Constitutional Court and the ZIZ, it is now possible to issue an interim order even to secure a declar- atory claim or a claim requesting the formation, modification, or cessation of a right or legal relation which has not yet arisen if the claimant demonstrates 5 Rijavec, V., Civilno izvršilno pravo, GV Založba, Ljubljana, 2003, pp. 263 and 264. 6 See also Šorli, N., Ugotovitvena tožba – ni podlaga za začasno odredbo, Pravna praksa, Vol. 13, No. 16, 1994, pp. 8 and 9. 7 See also Rijavec, op. cit. (fn. 5), p. 263. 8 Decision No. US RS Up-275/97 of 16 July 1997. 108 N. Pogorelčnik Vogrinc: The Requirements for the Issuance of an Interim Order – A Comparison... that it probably will. The main purpose is to regulate the legal relation in dis- pute and prevent a negative situation that would interfere with the claimant’s right to judicial protection or its effectiveness. The requirements for the issuance of an interim order differ to some extent in Austrian law. These reliefs (in German: Einstweilige Verfügungen) are regu- lated in the Exekutionsordnung (Enforcement Code – EO)9, in different ways for monetary (Articles 379 and 380) and non-monetary (Article 381 et seq.) claims. The Act does not explicitly require a demonstration of the existence of the claim in order for an interim order to be issued, nor to secure a monetary or other claim (Articles 379/II and 381). But the necessity of the existence of the basis, i.e. the claim that is the object of the temporary securing, derives from Article 389. The petitioner must define the claim and the nature and scope of the desired securing of a claim in the proposal for an interim order as thoroughly as in the main proceedings.10 König affirms this11 when saying that the purpose of interim orders is not to deter risk in general, but to protect a concrete legal situation. However, the requirement in the Austrian EO is not as wide as in the Slovenian ZIZ. An interim order cannot be issued to secure a claim which has not yet arisen12, even if it is possible or is expected to arise.13 In Germany the system of interim orders is formed differently, which is the reason why a comparison of the requirements regarding the existence of the claim is more difficult. Monetary claims can be secured with an Arrest (this is an original term which I will not translate to facilitate the understanding of the different measures), for the issuance of which demonstration of the existence of a claim is not needed. Article 916/I of the Zivilprozessordnung (Code of Civil Procedure – ZPO)14, which governs it, refers to enforcement of a monetary 9 Official Gazette, No. 79/1896 et seq.
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