At first, the State Court ruled in its decisions in StGH 1997/31, StGH 2002/37%, and StGH
2002/52 that the rules that were in place at that time on security deposits for legal costs were
EEA compliant.” However, in the opinion of 01 Jul 2005, E-10/04, the EFTA Court
considered a different provision of the ZPO (§ 56) - according to which all types of
performance not coming from Liechtenstein were excluded as a security deposit for legal
costs - not to be EEA compliant. This allowed the conclusion that the EFTA Court would
consider the rule of § 57 ZPO to be EEA-incompatible, too.
The State Court finally deviated from its original point of view in its decision in StGH
2006/94 and annulled the then provision of the ZPO as EEA-incompatible and therefore
contrary to the Constitution. The State Court argued that the then rule of §§ 56 et sqq. of the
old ZPO constituted an indirect discrimination of foreigners, which certainly could not be
justified by a lack of international enforcement treaties."
Subsequently, the legislator"? created new rules for security deposits for legal costs, which
still used the plaintiffs residence in Liechtenstein as a criterion, but did not provide for an
obligation to pay a security deposit if (among other things) the decision as to legal costs can
be enforced in the plaintiff's/appellants country of residence. Pursuant to Art. 34 of the
Agreement between the EFTA States on the Establishment of a Surveillance Authority and a
Court of Justice, this rule was submitted by a court to the EFTA Court for review.
In its decision of 17 December 2010, E-5/ 10%, the EFTA Court considered the new
Liechtenstein provisions concerning the payment of a security deposit for legal costs pursuant
to $8 57 et sqq. ZPO to be basically consistent with EEA law. It stated in particular that a
national procedural rule stating that plaintiffs not resident on the territory had to pay a security
deposit for legal costs in civil proceedings while plaintiffs resident on the territory were not
was justified on the grounds of public interest if this was necessary as well as proportionate.
* LES 2005, p. 145.
% See the criticism by Anton Scháfer, Die Prozesskostensicherheit — eine Diskriminierung, LIZ 2006/1, p. 17 —
32.
?! StGH 2006/94, www.gerichtsentscheide.li, cons. 2.4.
°* LGBI. 2009 no. 206.
PLES 2010, p. 5 with a commentary by Manfred Walser; see also Philipp Lennert/Daniel Heilmann, Die
Auslegung der aktorischen Kaution im Lichte des Allgemeinen Europäischen Diskriminierungsverbotes in Art. 4
des Abkommens zum Europäischen Wirtschaftsraum: Besprechung Urteil des EFTA-Gerichtshofes vom 17.
Dezember 2010, Rechtssache E-5/10, LIZ 2011, p. 25 — 28; Christian Kohler, Liechtenstein, cautio iudicatum
solvi und Lugano-Ubereinkommen: No End of a Lesson?, Jus & News 2/2011, p. 153 et sqq.
