Višje sodišče v Ljubljani; 2022-02-14; I Cp 1877/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2022:I.CP.1877.2021
Date: 2022-02-14
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Slovenia

82022SI0214(51)_ENG_SUMJURE
JURE summary
JURE summary
The Court of First Instance was correct to proceed with the hearing. The defendant did not contest the jurisdiction of the Slovenian court. In the absence of a jurisdiction agreement, the Slovenian court would have had jurisdiction to hear the case. The court would have taken account of the lack of jurisdiction of the Slovenian court or the agreed jurisdiction of a foreign court only if a party had objected to that effect; it would not have done so of its own motion, as provided in Article 18(3) of the ZPP (1). Jurisdiction of the Slovenian court also follows from the new Lugano Convention (2). As the defendant entered an appearance in the proceedings without contesting the jurisdiction of the Slovenian court, and since this is not a case of exclusive jurisdiction within the meaning of Article 22 of the Convention, it must be concluded, based on Article 24 of the Convention, that the defendant tacitly accepted the jurisdiction of the Slovenian court.
The Court of First Instance was also correct to apply Slovenian substantive law, despite the parties’ agreement on the application of Swiss law. As the plaintiff based the claim on the provisions of the OZ (3), and the defendant did not object to the application of Slovenian law, it must be concluded that the parties subsequently amended their agreement on the applicable law through their conduct and agreed on the application of Slovenian law.
To resolve the present case, it is necessary to determine whether the defendant, in fulfilling his duty to inform, explained to the plaintiff that he would lose the funds held in open positions if he withdrew all available funds from the account. In other words, it must be established whether the defendant informed the plaintiff that the funds in open positions had to be covered by the account balance.
Due to the selective assessment of evidence by the Court of First Instance, a comprehensive appellate review of the judgment is not possible.
(1) Zakon o pravdnem postopku (Civil Procedure Act).
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) Obligacijski zakonik (Obligations Code).