Višje sodišče v Ljubljani; 2018-02-07; II Cp 2567/2017
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2018:II.CP.2567.2017
Date: 2018-02-07
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82018SI0207(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 the Slovenian courts in succession proceedings.
The Okrajno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) terminated the succession proceedings, holding that, pursuant to Article 4 of the Succession Regulation (1), the courts of Germany had jurisdiction because the deceased had her habitual residence there at the time of death.
The plaintiff appealed, arguing that several recitals of the Succession Regulation emphasise the facilitation of cross-border successions and that the Court of First Instance should have considered the possibility of prorogation under Article 5 of the Regulation. He relied on Articles 7 and 9, maintaining that he and his daughter, as heirs, wished the succession to be handled in Slovenia, since the estate consisted of property located there. He also submitted that, under Article 15 of the Regulation, the Court of First Instance should have declared its lack of jurisdiction rather than terminating the proceedings.
The Court of Appeal confirmed that the present case, involving cross-border elements, is governed by the Succession Regulation. Under Article 4, jurisdiction lies with the courts of the Member State of the deceased’s habitual residence at the time of death, which was undisputedly Germany. The court competent under the Regulation decides on the succession as a whole, including movable and immovable property, irrespective of its location.
The Court of Appeal further noted that prorogation under Article 5 of the Succession Regulation is possible only where the deceased has chosen, in accordance with Article 22, the law of a Member State of which they were a national to govern the succession. No such choice of law had been shown; on the contrary, the contractual documents indicated that the deceased had chosen German law. In the absence of a valid choice-of-law clause, Articles 5, 7 and 9 of the Regulation could not confer jurisdiction on the Slovenian courts. The estate’s location in Slovenia was therefore irrelevant to the determination of international jurisdiction.
However, the Court of Appeal upheld the plaintiff’s objection that the Court of First Instance should not have terminated the proceedings. Under Article 15 of the Succession Regulation, a court seised without jurisdiction must declare of its own motion that it lacks jurisdiction, which corresponds to Article 199(2) of the ZD (2). The Court of First Instance should therefore have issued a declaratory ruling on its lack of jurisdiction.
Accordingly, the Court of Appeal allowed the appeal and amended the contested decision to state that the Slovenian courts do not have jurisdiction to determine the succession in question.
(1) Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.
(2) Zakon o dedovanju (Inheritance Act).