Prost pretok začasnih ukrepov v civilnih zadevah v EU in njihovi učinki : doktorska disertacija

slovenian

doktorska dela

2021

account information   bank account execution   contradictory   effects of provisional measures   element of surprise   European account preservation order   interim injunction   money abroad   provisional measures   real connection   recognition and enforcement of provisional measures

Univerza v Mariboru, Pravna fakulteta

The doctoral dissertation addresses the issue of the free movement of interim measures in civil matters within the EU borders and examines the effects of interim measures within the EU. The free movement of interim measures is important in order to ensure the full protection of the creditor and his right to private property. The issue of the effects achieved by interim measures abroad is also important, as the effects of interim measures can be decisive for the creditor's position. Although the principle of mutual trust applies in the EU, which means that EU Member States should have confidence in the legal systems of other EU Member States and the decisions of their judges, it can be concluded that in the area of %%free movement of interim measures under BU Ia in large cases, they effectively impede the free movement of these provisional measures.The reason for these restrictions can be found mainly in the fact that certain fundamental rights of debtors in civil proceedings (such as the right to a statement) are curtailed when issuing interim measures and that there is some doubt that individual EU Member States have insufficient or no respect for fundamental rights. individuals. It should also be borne in mind that the legal orders of the EU Member States also differ significantly as to the time at which an interim measure may be issued (before, during or after the main proceedings) and as to the conditions for issuing an interim measure. ). In order to ensure the efficient and rapid freezing of funds in bank accounts, the EAPO Regulation was adopted, the purpose of which is to provide creditors with an additional and optional means by which a creditor can freeze the debtor's funds in bank accounts in all EU Member States. (except Denmark). After examining the content of the EAPO Regulation, it can be concluded that it has not brought significant advantages in the field of protection of the interests of a creditor who does not yet have a legal title.In this case, the EAPO Regulation is also very conditional on the issuance of an order, which risks that the procedure under the EAPO Regulation will not be of interest to creditors who do not yet have a legal title. A report in this area has been adopted, which includes a proposal for a directive on common minimum standards for civil procedure in the EU. The subject of the directive is also the field of interim measures, and at this stage it is not yet possible to make conclusions regarding the practical significance or impact of the proposal for a directive on the free movement of interim measures. In order to show the difference in national legal systems, we discussed the national laws of Germany and Croatia regarding interim measures, noting that national legal systems differ in many respects and that this may be a reason for mistrust between EU Member States. After the analysis, we concluded that the decision of the creditor regarding the use or selection of an appropriate security measure depends on the effects that each measure provides. We also concluded that the recognition and enforcement procedure under BU Ia does not contribute to strengthening the principle of mutual trust in the functioning of the EU and to achieving the objective of the free movement of judgments. Finally, we also found that in order for the free movement of judgments to be effective, it would be appropriate to adopt common minimum standards of procedure.

08.08.2023