Višje sodišče v Mariboru; 2016-01-12; I Cp 947/2015
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2016:I.CP.947.2015
Date: 2016-01-12
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82016SI0112(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiffs, domiciled in Slovenia, concluded with the defendants, domiciled in Italy, a sales contract concerning a sale of real estate located in Slovenia.
The plaintiffs sought before the Okrožno sodišče v Murski Soboti (hereinafter ‘the Court of First Instance’) the annulment of the contract and financial compensation for the failure of the contract. The defendants provided their defence against the request and suggested it should be refused.
The Court of First Instance, of its own motion, declared a lack of its jurisdiction. It considered the applicability of Article 22 of the Brussels I Regulation (1), according to which in proceedings which have as their object rights in rem in immovable property, the exclusive jurisdiction, regardless of domicile of parties, shall lie with the courts of the Member State in which the disputed property is situated. The court, bearing in mind the requested financial compensation, held that the present case does not involve rights in rem. Furthermore, the Court of First Instance declared that the defendants did not enter the proceedings, which was a reason for refusal of jurisdiction by virtue of Article 26(1) of the Brussels I Regulation.
The plaintiffs appealed before the Višje sodišče v Mariboru (hereinafter ‘the Court of Appeal’) alleging that: 1. the Court of First Instance absolutely omitted the first plea (annulment of the contract); 2. it erred in applying the Brussels I Regulation as for example Article 5 of the Regulation provides that in contractual matters a person domiciled in a Member State may, in another Member State, be sued in the courts for the place of performance of the obligation in question’, which obviously was a place in Slovenia; 3. the conclusion based on Article 26 was wrong as the defendants evidently entered an appearance.
The Court of Appeal upheld that the present case does not regard rights in rem in immovable property, thus the exclusive jurisdiction of the Slovenian courts under Article 22(1) is not given. However, the Court of Appeal confirmed that the defendants appeared before the proceedings and their appearance was not entered to contest the jurisdiction, so the exclusion of Slovenian jurisdiction is possible neither under Article 24 nor under Article 26(1) of the Brussels I Regulation. As the plaintiffs’ claims were not principally concerned with a matter over which the Slovenian courts have exclusive jurisdiction by virtue of Article 22, not even Article 25 should serve as a basis for the exclusion of Slovenian jurisdiction.
If a defendant does not object the lack of jurisdiction in its defence, the presumption is established that he has accepted the jurisdiction of the court. Since the defence presented by the defendants did not contain any such objection, their tacit consent with the jurisdiction must be presumed. The situation falls under Article 18 of the ZPP (2), according to which the court must, at all times, of its own motion take due care to ensure that the jurisdiction of Slovenia is still given, except in cases where the Slovenian jurisdiction depends on the consent of the defendant, which is exactly the case here. As a consequence, the Court of First Instance erred in considering the jurisdiction of its own motion.
The Court of Appeal upheld the appeal, annulled the first instance decision and referred the case back to the Court of First Instance for a new hearing.
(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 pravdnem postopku (Code of Civil Procedure).