Višje sodišče v Ljubljani; 2020-05-13; A., d. o. o., B. GmbH; I Cpg 232/2020
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2020:I.CPG.232.2020
Date: 2020-05-13
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82020SI0513(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of international jurisdiction in a dispute between two foreign sales partners which was resolved by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’).
A company domiciled in Estonia (hereinafter ‘the plaintiff’) entered into multiple sales contracts (based on individual purchase orders and invoices) with a company domiciled in Germany (hereinafter ‘the defendant’).
Because of outstanding commitments, the plaintiff applied before the Okrožno sodišče v Kranju (hereinafter ‘the Court of First Instance’) and sought payment of EUR 26.449,78. The Court of First Instance ascertained that several plaintiff’s bids referred to its General Terms and Conditions of Sale (GTCS) available on its website. Point 15.4 of GTCS then provides that the parties will resolve potential disputes before the Court of First Instance (Kranj). Other bids lacked reference to the GTCS but included an EX-WORKS clause instead. The Court of First Instance invoked Article 25 of the Brussels I Regulation (recast) (1) and declared that the Slovenian courts have jurisdiction over the dispute.
This conclusion was further re-examined by the Court of Appeal. It mainly assessed the validity of the jurisdiction clause contained in the GTCS and the reference to the EX-WORKS clause.
The Court of Appeal cited Article 25 of the Brussels I Regulation (recast) and explained the requirements laid down by this provision to a clause conferring jurisdiction, which must be in writing or evidenced in writing. The Court of Appeal further cited the case-law of the Court of Justice of the European Union and then applied the well-established principles to the current dispute. The requirement of a writing is fulfilled only in the case of express reference to the clause conferring jurisdiction and if it could be established that such clause has been communicated to the other contracting party. However, in the present case, the plaintiff's bids contained only general references to the GTCS, without any special indication of clause conferring jurisdiction. As the GTCS were available only on the website, there neither was evidence that they were communicated to the defendant. The business history between the parties also did not provide any satisfying suggestions that the defendant was aware of such a jurisdiction clause. Moreover, the defendant denied being aware of such clause. Under these circumstances, the Court of Appeal concluded that the strict requirements laid down by Article 25 of the Brussels I Regulation (recast) cannot apply to the present case.
The reference to the EX-WORKS clause (2) in connection with Article 7(1)(b) of the Brussels I Regulation (recast) would generally mean that the jurisdiction lies with the Slovenian courts as being the courts of the place where ‘the goods were delivered or should have been delivered’. However, the examination of business documentation showed several irregularities between the bids, acceptance notes and invoices and it could not be concluded that use of the EX-WORKS clause was a generally accepted practice in business relations between the parties to this dispute.
Therefore, neither the reference to GTCS nor the (irregular) use of the EX-WORKS clause may establish the jurisdiction of the Slovenian courts according to the Brussels I Regulation (recast).
The Court of Appeal amended the first instance decision by its ruling that the Slovenian courts lack the jurisdiction to resolve this dispute and dismissed the action.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) EX-WORKS clause is an international trade term according to which the contract is fulfilled when a seller makes a product available to a buyer at the specified location, mainly at the premises of the seller.