Višje sodišče v Ljubljani; 2017-02-21; I Cp 2998/2016
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2017:I.CP.2998.2016
Date: 2017-02-22
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82017SI0222(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a dispute between a creditor domiciled in Croatia (hereinafter ‘the plaintiff’) and several defendants domiciled in Germany, including the plaintiff’s debtor (hereinafter ‘defendant 1’) and a third party to the debtor (hereinafter ‘defendant 2’). The plaintiff and defendant 1 had a sales contract concerning real estate. The first claim of the plaintiff aimed to secure his rights following the cancellation of the sales contract (hereinafter ‘the primary claim’). The second claim was brought as an actio Pauliana challenging the legal actions of the defendants to prevent actions adversely affecting his property rights (hereinafter ‘the alternative claim’). Furthermore, as a consequence of the cancellation of the sales contract, the plaintiff also sought a change of the entry in the land register concerning the disputed property.
The Okrožno sodišče v Krškem (hereinafter ‘the Court of First Instance’) invoked the Brussels I Regulation (1), and held that the Slovenian courts lacked jurisdiction over the primary claim and dismissed it. As the claims were closely related, the alternative claim was also automatically deemed to be dismissed.
The plaintiff alleged that the Court of First Instance had applied the wrong regulation and that the primary claim should be heard by the Slovenian court on the basis of Article 24(5) of the Brussels I Regulation (recast) (2), according to which ‘in proceedings concerned with enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced’ shall have exclusive jurisdiction. Furthermore, it was alleged that the defendants agreed among themselves on the jurisdiction of the Slovenian courts.
The Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) confirmed that the Court of First Instance applied an ineffective version of the Brussels I Regulation. Nevertheless, the provisions of both versions are similar, so the first instance conclusion on the primary claim was held correct, i.e. the Slovenian courts lacked jurisdiction to hear the case. Article 24(5) of the Brussels I Regulation (recast) cannot be applied to the present case as what was sought here was not the enforcement of a judgment, even if the decision in this case may affect further enforcement of the plaintiff’s claims. The allegation that the defendants agreed on jurisdiction in favour of the Slovenian courts does not have any effect on the present case, as such an agreement is binding only between the defendants and cannot be automatically applied to the relation between the defendants and the plaintiff. These grounds for appeal were dismissed.
However, the Court of Appeal disagreed with the Court of First Instance that the second claim cannot be assessed separately. The Court of Appeal cited national law, according to which if the primary claim is dismissed the alternative claim becomes the primary one.
Therefore, the Court of Appeal annulled the first instance decision regarding the supposed impossibility to assess the alternative claim. The case was referred back to the Court of First Instance for new proceedings, in which the court must assess the conditions for jurisdiction with regard to the alternative claim. Mainly, it must take into account application of Article 24(3) of the Brussels I Regulation (recast), which provides the jurisdictional rules for ‘proceedings which have as their object the validity of entries in public registers’, because that was also one of the plaintiff’s claims.
(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) 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.