Difficult-to-repair damage as a requirement for issuing an interim injunction
Fabiani, Petrovič, Jeraj, Rejc d.o.o. / Cathay Slovenia
Even though the institute of interim injunction spans several areas of law and that interim injunctions, therefore, differ from one another, they all serve a common purpose: it is an urgent measure issued by the court to prevent difficult to repair damage from occurring before the court has a chance to decide ta case.
In a recent ruling, the Supreme Court specified the preconditions for issuing an interim injunction in an administrative dispute, setting out the guidelines that plaintiffs must follow when applying for an interim injunction in an administrative dispute.
Pursuant to the third paragraph of Article 32 of the Slovene Administrative Dispute Act (Zakon o upravnem sporu), the plaintiff may move that the court postpone the execution of a challenged act until the final decision if execution of the act would result in difficult to repair damage for the plaintiff. In the opinion of the Supreme Court, however, this is not every damage, as it can in principle be sued before the competent court. In addition to the amount and form of the damage, the plaintiff must also prove, with a degree of probability, that the damage is difficult for him to repair, whereby the established case law considers the damage to be difficult to repair if it is serious and threatens the plaintiff directly. General and unspecified claims about e.g. restricting access to the market, or the need to change the identity of one's brand, or even the loss of market position and damage to reputation as a result of the abandonment of marketing activities, in the opinion of the Supreme Court, do not meet this requirement. The plaintiff bearing the burden of proof must thus specify how the alleged adverse consequences are to be assessed as difficult-to-repair damage.
This ruling sees the Supreme Court remain faithful to its restrictive approach when ruling on interim injunctions, emphasizing that the plaintiff must demonstrate in a concrete and definite manner the occurrence of difficult to repair damage and that general and unspecified arguments do not satisfy this requirement.
Author: Martin Pirkovič, Associate (Fabiani, Petrovič, Jeraj, Rejc d.o.o.)