Višje sodišče v Mariboru; 2024-11-12; I Cp 443/2024
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2024:I.CP.443.2024
Date: 2024-11-12
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82024SI1112(51)_ENG_SUMJURE
JURE summary
JURE summary
Since the damage occurred in Slovenia, the Slovenian court has jurisdiction. Under Article 7(2) of the Brussels I Regulation (recast) (1), ‘a person domiciled in a Member State may be sued in another Member State in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.
The purpose of an interlocutory judgment is to spare the parties and the court the extensive work involved in proving the amount of the claim.
Neither the court nor the parties to the proceedings possess the necessary expertise to determine in every case which documents or information an expert will require to prepare a correct, complete, and professional opinion. Case law also recognises that an expert may obtain the necessary documentation themselves.
The defendant’s position that the expert is obliged to invite the parties to an inspection for information is incorrect. The ZPP (2) does not prescribe such an obligation, nor does such an obligation arise from the parties’ right to be heard.
The Court of First Instance based the obligation to pay damages on the defendant’s strict liability (Article 131(2) of the OZ (3)), under which the burden of proof and argument lies even more heavily on the injuring party than it does under subjective (fault-based) liability, since causation is presumed and the damage stems from a dangerous object or dangerous activity. This means that the possessor of a dangerous object or the person engaged in a dangerous activity is not liable for the damage only if he proves that it was not caused by that object or activity (see also Article 149 of the OZ). Even where strict liability is asserted, the burden of proof in respect of the damage remains on the injured party.
The operation of sluice gates (lowering and raising the gates) is an integral part of the operation of a hydroelectric power plant, which, in the present case, included a weir with a reservoir (an accumulation) upstream of the dam. Although the Court of First Instance relied on the opinion of the hydrology expert that the (partial) emptying of the reservoir upstream of the largest power plant took place during the peak of the flood wave rather than being completed before its arrival, the Court of First Instance did not assess this conduct from the perspective of subjective liability but from that of the connection between the operation of the power plant and the occurrence of the damage (causal link) within the assessment of strict liability and the possibility of exemption from it, as explained below.
The appeal unjustifiably emphasises a distinction between run-of-river power plants, such as those in the present case, and storage power plants.
The Court of Appeal agrees with the reasons of the Court of First Instance that the defendant failed to prove that the dangerous activity of operating hydroelectric power plants was not the cause of the damage suffered (Article 149 of the OZ).
The operation of hydroelectric power plants is always linked to natural (meteorological) phenomena, since such plants utilise the flow of water resulting from such phenomena. The management of the river flow, therefore, falls within the scope of the activities of river hydroelectric plants. Monitoring and responding to natural phenomena affecting the flow of the Drava River (precipitation, snowmelt, soil saturation) form a fundamental part of the defendant’s activity as operator of the power plants.
The Court of First Instance correctly held that the defendant could influence the flow by increasing it through the timely emptying of reservoirs upstream of the power plants (particularly the largest one) during the peak of the flood wave, and could also have reduced the flow by completing the emptying process on time and by managing the hydroelectric plants as flood-control structures.
(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) Zakon o pravdnem postopku (Civil Procedure Act).
(3) Obligacijski zakonik (Obligations Code).