Višje sodišče v Ljubljani; 2024-09-18; I Cpg 500/2023
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2024:I.CPG.500.2023
Date: 2024-09-18
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82024SI0918(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the international jurisdiction of Slovenian courts and the validity of a jurisdiction clause allegedly binding a foreign State.
The plaintiff brought an action against the State of Kuwait (hereinafter ‘the defendant’) seeking payment for services allegedly rendered under a cooperation agreement concerning the treatment of Kuwaiti patients in hospitals in Germany. The agreement was signed by a representative of the General Consulate of the State of Kuwait in Germany and contained a clause conferring jurisdiction on the courts in Ljubljana. The defendant objected to jurisdiction, arguing that the signatory lacked authority to bind the State. The Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) upheld the objection and dismissed the claim.
The plaintiff appealed, arguing that the defendant was bound by the signature of its consular representative based on the nature of consular functions, or alternatively that the defendant had ratified the agreement, including the jurisdiction clause, by paying specific invoices issued under the contract. The plaintiff also relied on national rules on international jurisdiction.
The Court of Appeal first examined the validity of the jurisdiction agreement under Article 25 of the Brussels I Regulation (recast) (1). It held that the burden of proving the existence of a valid jurisdiction agreement, including the authority of the signatory to bind the party concerned, lies with the party relying on it. It found that the Vienna Convention on Consular Relations (2) does not confer inherent authority on consular officers to conclude private-law contracts binding the sending State. The plaintiff failed to prove express authorisation.
As regards the alleged ratification, the Court of Appeal clarified that acts of an unauthorised agent, including partial performance by a consular body, cannot constitute ratification by the State under private law. The principle of the unity of the State applies in international public law concerning State responsibility, not to private contractual relations. Moreover, under Article 25 of the Brussels I Regulation (recast), a jurisdiction agreement must comply with specific formal requirements. Tacit prorogation under Article 26 presupposes an appearance without contesting jurisdiction, which did not occur. Partial payment of invoices does not satisfy the formal requirements for validating a jurisdiction clause.
The Court of Appeal then examined whether Slovenian jurisdiction could be established under national law, in particular the ZMZPP (3). General jurisdiction under Article 48, based on domicile, was excluded because the defendant was not domiciled in Slovenia. Under Article 56 of the ZMZPP, special jurisdiction for contractual disputes is determined by the place of performance of the obligation. Applying the conflict-of-laws rules set out in the Rome I Regulation (4), the Court found the contract most closely connected to Germany and therefore governed by German law. Under German law, the place of performance of a monetary obligation is the debtor’s domicile, which was not in Slovenia.
Accordingly, the Court of Appeal confirmed the decision of the Court of First Instance.
(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 (recast).
(2) Vienna Convention on Consular Relations of 24 April 1963.
(3) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(4) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).