Višje sodišče v Ljubljani; 2017-10-12; IV Cp 1894/2017
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2017:IV.CP.1894.2017
Date: 2017-10-12
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82017SI1012(52)_ENG_SUMJURE
JURE summary
JURE summary
In this matrimonial case one of the former spouses was a citizen of Slovenia, currently domiciled in the United States (hereinafter ‘the plaintiff 1’), whilst the other one was citizen of Gambia allegedly domiciled in Sweden (hereinafter ‘the plaintiff 2’).
The Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) invoked Article 3 of the new Brussels II Regulation (1), and based upon the habitual residence of the spouses, declared the lack of its jurisdiction to hear the case and held that the courts of Sweden had jurisdiction in this case due to the habitual residence of one of the couple.
The Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) confirmed that the choice to apply the new Brussels II Regulation was correct. The first instance conclusion declaring the lack of jurisdiction of the Slovenian courts was upheld, since plaintiff 1 confirmed having a domicile in the United States. However, the first instance conclusion establishing the jurisdiction of the Swedish courts was held erroneous and premature. The conclusion cannot be based only on the allegations contained in the plaintiff’s request, but the court is obliged to thoroughly investigate all the circumstances leading to the final assessment, which was not sufficiently done in this case. On one hand, it was correct to exclude Slovenian jurisdiction on the basis of Article 3 of the Regulation, but, on the other hand, such assessment may be concluded also by the Swedish court. Article 7 of the Regulation provides that where no court of a Member State has jurisdiction, jurisdiction shall be determined by national laws. Then, the assessment of the case through the view of the Slovenian national legislation may paradoxically lead to the conclusion that it is the Slovenian courts which have jurisdiction.
Therefore, the appeal was partly granted, the first instance decision was annulled, and the case was referred back to the Court of First Instance for a new hearing.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.