Page - 62 - in Austrian Law Journal, Volume 2/2017

ALJ 2/2017 Philipp Anzenberger / Tjaša Ivanc 62 sels Ia Regulation).32 Yet, such an adaptation must not result in effects going beyond those provided for in the law of the Member State of origin (Art. 54 para. 1 subpara. 2 Brussels Ia Regulation).33 2. Austrian Provisional Measures In Austrian civil procedure law, interim measures (Einstweilige Verfügungen) are set forth in §§ 378– 402 of the Austrian Enforcement Code (EO34). § 379 EO provides for restraining orders to secure monetary claims; § 379 para. 3 subpara. 3 EO holds some special provisions for cases where third-party debtors (for example banks) are involved. Such a restraining order is enforced by issuing a so-called double order: the debtor is served a freezing order, whereas the third-party debtor is served an order prohibiting payment and any other action that might impede the successful enforcement of the affected claim.35 The debtor as well as the third-party debtor can, but do not need to be, heard before the provisional measure is issued.36 Yet, whoever was not heard before the provisional measure was issued is granted a special (but not suspensive) objection (Widerspruch) in order to ensure their right to be heard (§ 397 EO). The third-party prohibition has no effect in rem. 37 Hence, the creditor does not acquire a security right (with an erga omnes effect) regarding the affected claim. Nevertheless, according to § 385 para. 3 EO, the third-party debtor is liable to pay damages caused by the disregard of the prohibition. 3. Slovenian Provisional Measures In Slovenia, an interim order may be issued before any judicial procedure, during the procedure, as well as after the procedure, until the enforcement is carried out. Unlike with respect to prelim- inary measures, the court is free to issue, on the proposal of the creditor, any kind of interim measure. Although the law explicitly identifies only a few possible types of interim injunctions, the court may issue any order proposed by the creditor which could achieve the purpose of such preservation (Art. 271 of the Civil Claim Act (ZIZ38)). The interim measure instructs the bank to refuse payment from the debtor’s account to the debtor or another person on the debtor’s in- structions of the sum of money on which the interim order has been placed (Art. 271 para. 1 point 4. ZIZ). The bank may freeze the amount of money ordered in the court decree or transfer the money to a special bank account.39 If the bank violates the prohibition to dispose of the money, it may be held liable for damages. In Slovenia, a court’s decree of interim order – if issued in a civil or any other proceeding – has the effect of an enforcement decree (Art. 286 ZIZ); however, it can only interfere with the sphere of the debtor but not of third parties.40 For example, the issuing of an interim measure 32 Cf. Dörner, supra note 20, at Art. 54 EuGVVO ¶ 1; Leible, supra note 12, at Art. 54 Brüssel Ia-VO ¶ 7. 33 Dörner, supra note 20, at Art. 54 EuGVVO ¶ 2. 34 “Exekutionsordnung“. 35 Hansjörg Sailer, in EXEKUTIONSORDNUNG – KOMMENTAR § 379 EO ¶ 23 (Alfred Burgstaller & Astrid Deixler-Hübner eds., 2016). 36 MATTHIAS NEUMAYR & BETTINA NUNNER-KRAUTGASSER, EXEKUTIONSRECHT 304–305 (3rd ed. 2011); WALTER RECHBERGER & PAUL OBERHAMMER, EXEKUTIONSRECHT ¶ 521 (5th ed. 2009), 521. 37 Neumayr & Nunner-Krautgasser, supra note 35, at 293; Rechberger & Oberhammer, supra note 35, at ¶ 482; Sailer, supra note 34, at § 379 EO ¶ 24; also cf. Erich Kodek, in KOMMENTAR ZUR EXEKUTIONSORDNUNG § 379 EO ¶ 14 (Peter Angst & Paul Oberhammer eds. 2015). 38 “Zakon o izvršbi in zavarovanju“. 39 NEŽA POGORELČNIK VOGRINC, ZAČASNE ODREDBE V CIVILNIH SODNIH POSTOPKIH 251 (2015). 40 VESNA RIJAVEC, CIVILNO IZVRŠILNO PRAVO 272 (2003).