Nejvyšší soud České republiky; 2016-03-29; 30 Cdo 2823/2015
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2016:30.CDO.2823.2015.1
Date: 2016-03-29
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82016CZ0329(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a claim of E.ON Energie (hereinafter the “plaintiff”) against M. Ž. (hereinafter “the defendant”) for the discharge of a debt arising from an agreement for the supply of electricity with the delivery point agreed to be in the Czech Republic. The order for payment failed to be delivered to the defendant and the Court of First Instance cancelled it. The court ascertained that the defendant is a citizen of Slovakia with a domicile therein. Following this finding, the proceedings were stopped by virtue of Article 16(2) of the Brussels I Regulation (1), according to which proceedings may be brought against a consumer only in the courts of the Member State in which the consumer is domiciled.
The Court of Appeal upheld this decision, denying the objection of the plaintiff that the supply of electricity could not be subsumed under the meaning of a consumer contract within Article 15 of the Brussels I Regulation.
The plaintiff filed a cassation to the Nejvyšší soud (hereinafter “the Supreme Court”) alleging errors of law in the interpretations of the lower courts. The plaintiff does not pursue commercial activities outside the Czech Republic, therefore the contract cannot be regarded as the a consumer contract as defined in Article 15(1)(c) of the Brussels I Regulation. Conversely, Article 5(1)(a) should be applied in this case, according to which a person domiciled in a Member State may, in another Member State, be sued, in matters relating to a contract, in the courts of the place of performance of the obligation in question.
According to the Supreme Court, two requirements must be met in order to apply Article 15(1)(c). Firstly, one of the party must pursue its commercial activities in the Member State of the consumer’s domicile or, by any means, direct such activities to that Member State. Secondly, the contract must fall within the scope of such activities. However, it was not sufficiently proved, whether the defendant had, at the time of concluding the agreement, domicile in the Czech Republic and therefore it cannot be reliably established whether the first condition was met. The Supreme Court added that the contracted delivery point cannot be considered identical to domicile. Furthermore, the conclusion of the lower courts that the domicile of the defendant is in Slovakia was not sufficient either because, by virtue of Article 59(2), in order to determine whether the party is domiciled in another Member State, the court shall apply the law of that Member State. In this case, the law of Slovakia had to be applied, but was not. Therefore, the Court of Appeal based its decision on incorrect findings of facts, which lead to errors of law.
Finally, the Supreme Court reminded the lower courts that any court may assess its jurisdiction before the defendant is notified of the action filed against him, unless the case regards exclusive jurisdiction by virtue of Article 22. However, none of the documents in this dispute were delivered to the defendant. Some of them were delivered only on the basis of “fictional delivery”, although the courts were aware of the permanent and also the temporary address of the defendant based on the information provided by Slovakia.
Based on aforementioned, the Supreme Court annulled the decisions of both lower courts and referred the case back to the Court of First Instance for new proceedings, recommending that the court notify the defendant of the action filed against him and only after that move to assess the international jurisdiction of the Czech courts.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.