Višje sodišče v Ljubljani; 2020-11-04; I Cp 1528/2020
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2020:I.CP.1528.2020
Date: 2020-11-04
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82020SI1104(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of international jurisdiction resolved by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’).
A plaintiff domiciled in Slovenia applied before the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) for the enforcement of a debt arising from a leasing contract. The defendant was a legal representative of a debtor company and guaranteed for the obligations of the company.
In its application, the plaintiff stated that the defendant resides at the address where it lived when signing the leasing contract. Later it was established that the defendant is domiciled in Malta. The Court of First Instance, therefore, appointed to the defendant a professional representative and served the documents to that representative.
The defendant lodged an objection against the jurisdiction of the Slovenian courts, identified itself as a consumer, declared inapplicability of the agreement on jurisdiction contained in the contract and suggested that the courts in Malta should have jurisdiction.
The Court of First Instance declared a lack of international jurisdiction of the Slovenian courts and dismissed the action.
The plaintiff appealed to the Court of Appeal alleging that the defendant failed to contest the jurisdiction on time, therefore, tacitly accepted the jurisdiction in compliance with Article 26 of the Brussels I Regulation (recast) (1).
The Court of Appeal confirmed that the conditions for applying the Brussels I Regulation (recast) were fulfilled (a civil matter case against a person domiciled in another Member State of the European Union brought before the court of another Member State). The Brussels I Regulation (recast) contains a general rule on international jurisdiction in Article 4, supplemented by rules on special (Articles 7 to 9), protective (Articles 10 to 23), exclusive (Article 24) and tacit (Article 26) jurisdiction and rules for the prorogation of jurisdiction (Article 25).
The plaintiff’s argument on a tacit acceptance of jurisdiction cannot be accepted. The fact that a provisional representative, appointed by a court to the defendant, absent because his residence is unknown, enters the proceedings does not mean that the defendant did so. The absent defendant, unaware of the proceedings, cannot be deemed to have consented to them. In this case, the defendant objected against the jurisdiction once he learned of the proceedings.
The Court of Appeal denied the defendant’s assertion declaring itself a consumer under Article 17 of the Brussels I Regulation (recast). The defendant was a natural person but was also a legal representative of a debtor company. The defendant did not sufficiently prove that she entered the contract outside her professional activity, as she alleged.
The Court of Appeal pointed to the written agreement on prorogation of the jurisdiction in favour of the Okrajno sodišče v Kranju (Court of First Instance in Kranj), which fulfilled all conditions laid down by Article 25 of the Regulation. Such a choice of territorial jurisdiction of the court in Slovenia also implies a choice of international jurisdiction. The first instance conclusion that the Slovenian courts lack jurisdiction in the present case was therefore incorrect.
The Court of Appeal granted the appeal, annulled the decision of the Court of First Instance and referred the case back to that court.
(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.