An end to preliminary orders based on an enforcement order or payment order

On 10 July 2014, the Constitutional Court of the Republic of Slovenia repealed point 1 of the first paragraph of Article 258 of the Enforcement and Securing of Civil Claims Act (hereinafter: the ZIZ), thereby eliminating the privileged treatment of creditors in possession of a payment order or an enforcement order based on an authentic document compared with plaintiffs who filed a lawsuit in contentious proceedings.

In accordance with the previous legislation, it was possible at a creditor's request to issue a preliminary order merely under a payment order or an enforcement order based on an authentic document, against which an objection was filed on time, meaning these orders were yet to be final. In this way, only creditors in proceedings for the issuance of a payment order or those who obtained an enforcement order based on an authentic document gained the possibility to obtain a preliminary order before the court of first instance rendered its judgement. These creditors acquired evidence of the likelihood of a claim or grounds for the issuance of a preliminary order in (generally) written proceedings, without a hearing, based on unilateral submission of procedural material and based on a pleading that does not meet the criteria for a complete lawsuit under the Civil Procedure Act (hereinafter: the ZPP).

Creditors who were forced to enforce their claims by way of a lawsuit in regular contentious proceedings, had to demonstrate the likelihood of their claim with a first-instance judgement, rendered under a regular contradictory procedure, which was conducted based on a complete lawsuit according to an oral and direct public hearing. This placed creditors with an unenforceable judgement that was rendered in regular contentious proceedings in a significantly worse position relative to the creditors in possession of a payment order or an enforcement order based on an authentic document.

Since the Constitutional Court had difficulty finding a rational and practical reason for the issuance of preliminary orders privileging a specific category of creditors solely based on a non-final payment order or enforcement order based on an authentic document, against which an objection has been filed, it repealed point 1 of the first paragraph of Article 258 of the ZIZ.