Višje sodišče v Ljubljani; 2018-04-18; I Cp 2219/2017
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2018:I.CP.2219.2017
Date: 2018-04-18
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82018SI0418(51)_ENG_SUMJURE
JURE summary
JURE summary
A Slovenian natural person (hereinafter ‘the plaintiff’) suffered an injury in Italian ski resort and subsequently lodged an action for damages against an Italian legal person managing the ski resort (hereinafter ‘defendant 1’) and the Italian insurance company (hereinafter ‘defendant 2’).
The Okrajno sodišče v Krškem (hereinafter ‘the Court of First Instance’) invoked Chapter II Section 3 of the Brussels I Regulation (recast) (1) and declared a lack of jurisdiction of the Slovenian courts over this claim, as defendant 1, as indicated by the plaintiff, did not exist at all and defendant 2, as the insurance company, cannot be sued in Slovenia.
The plaintiff appealed before the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) alleging mainly that (a) the Court of First Instance overlooked Article 11(1)(b) of the Regulation, according to which an ‘insurer may be sued also in the courts for the place where the claimant is domiciled’, (b) the effect of the injury became evident only after the plaintiff’s return to Slovenia, thus the place where the damage occurred lies also in Slovenia and (c) defendant 1 only merged with another legal person and it is therefore incorrect that the defendant does not exist anymore.
The Court of Appeal held that the application of Chapter II Section 3 of the Brussels I Regulation (recast) by the Court of First Instance was correct, as it must be assessed in its entirety, and not only by taking account of its Article 11(1)(b). The Court of First Instance correctly applied Article 13(2) of the Regulation, according to which Article 11 ‘shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted’. As the Court of Appeal stated, Italian law does not allow such direct actions against an insurance company and the application of Article 11(1)(b) of the Regulation is therefore excluded.
With regard to the place where the harmful event occurred, the Court of Appeal referred to the case law of the Court of Justice of the European Union and recalled that only the place of primary injury must be taken into account, which was the ski resort in Italy, and not the place where the indirect consequences of such an injury occurred.
The appeal concerning defendant 2 was rejected and the first instance decision was in this regard partially upheld.
However, the Court of Appeal held that the fact that the legal person merged with another person cannot be assessed as the non-existence of such person. As it results from previous case law, the procedure can be continued with a person which is a legal successor of that person. Moreover, the plaintiff had corrected the name of defendant 1 already during the first instance proceedings and therefore remedied this defect.
The appeal concerning defendant 1 was granted, the first instance decision was in this regard partially annulled and the case was referred back to the Court of First Instance for further proceedings concerning defendant 1.
(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.