Vrhovno sodišče Republike Slovenije; 2009-02-03; III Ips 164/2008
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2009:III.IPS.164.2008
Date: 2009-02-03
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82009SI0203(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Vrhovno sodišče (hereinafter ‘Supreme Court’), concerns the temporal scope of application of the Brussels I Regulation (1) and the validity of a jurisdiction clause conferring jurisdiction on a foreign court.
In 1992, the parties concluded a loan agreement containing a jurisdiction clause in favour of an Austrian court. Nevertheless, in 1998, the plaintiff brought an action before the Okrožno sodišče v Celju (hereinafter ‘the Court of First Instance’), which had general territorial jurisdiction based on the defendant’s permanent residence in Slovenia.
The Court of First Instance applied the provisions of the Brussels I Regulation relating to prorogation of jurisdiction and held that it lacked jurisdiction, dismissing the claim. The Court of Appeal reversed the decision, holding that the Regulation was not applicable because Slovenia only became a Member State of the European Union on 1 May 2004. Since the action had been lodged in 1998, the Regulation could not apply ratione temporis, and the jurisdiction of the Slovenian court had to be determined under national law.
The Vrhovno državno tožilstvo Republike Slovenije (hereinafter ‘the State Prosecutor’s Office’) lodged a request for the protection of legality, alleging that the Court of Appeal had misapplied Article 66 of the Brussels I Regulation and had incorrectly relied on Article 89 of the ZMZPP (2) and Article 104 of the Austrian Jurisdiktionsnorm (3).
The Supreme Court rejected those arguments. It clarified that, under Article 66(1) of the Brussels I Regulation, the Regulation applies only to legal proceedings instituted after its entry into force. Accordingly, a national court must dismiss an action brought before that date, even if it would otherwise have jurisdiction under the Regulation. Article 66(2) constitutes an exception that applies solely to proceedings concerning the recognition and enforcement of judgments delivered by courts of other Member States, not to questions of jurisdiction. The State Prosecutor’s Office had therefore misinterpreted that provision, and its proposed interpretation would be contrary to European Union law.
The Supreme Court upheld the Court of Appeal’s application of the ZMZPP. Under Article 52 of that Act, a jurisdiction agreement excluding the competence of a Slovenian court is effective only if the judgment of the prorogated foreign court would be recognisable and enforceable in Slovenia. Since, at the time when the action was filed (1998), there was no reciprocity between Austria and Slovenia regarding the recognition and enforcement of judgments, the jurisdiction clause in favour of the Austrian court was invalid.
Accordingly, the Supreme Court dismissed the request for the protection of legality as unfounded and upheld the decision of the Court of Appeal.
(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.
(2) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(3) Jurisdiktionsnorm (Austrian Law on Jurisdiction).