Višje sodišče v Ljubljani; 2020-05-20; VSL Sklep I Cpg 627/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2020:I.CPG.627.2019
Date: 2020-05-20
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Slovenia

82020SI0520(51)_ENG_SUMJURE
JURE summary
JURE summary
Since the provision on special jurisdiction in matters relating to contractual matters is identical in both the new Lugano Convention (1) and the Brussels I Regulation (2), in accordance with Protocol No 2 to the new Lugano Convention, the judgments of the Court of Justice of the European Union concerning the interpretation of the Brussels I Regulation must also be taken into account when interpreting the new Lugano Convention.
According to the case law of the Court of Justice of the European Union, the requirement of writing for an agreement conferring jurisdiction is met only when the contracting party has been expressly informed of the incorporation of the jurisdiction clause in the General Terms and Conditions. In such situations, the General Terms and Conditions must have been communicated to the party concerned. Consequently, in the circumstances of the present case, the requirement of writing has not been met. Neither the offer nor the order confirmation shows that the defendant was expressly informed of the inclusion of the jurisdiction clause in the General Terms and Conditions. Furthermore, the General Terms and Conditions were not included in the documentation accompanying the offer or the order confirmation, nor were they the subject of any other form of communication between the parties to the proceedings. A mere reference to the General Terms and Conditions (with a reference to the website in the offer but not the order confirmation) does not fulfil the requirement of writing or the requirement for the parties to expressly consent to the court’s jurisdiction under Article 23(1)(a) of the new Lugano Convention.
As it was not disputed in the proceedings that the parties were conducting business with each other for the first time, there was no established commercial relationship on the basis of which the defendant could have previously been aware of the contents of the disputed General Terms and Conditions. The disputed agreement conferring jurisdiction is therefore invalid under Article 23(1)(b) of the new Lugano Convention.
To prove consent to the choice of an internationally competent court, it is necessary to demonstrate to the court that the parties had agreed on jurisdiction and that this agreement was clearly and precisely established. Although general terms and conditions are usually part of the contract-conclusion in international trade, this does not mean that consent is not required for an agreement conferring jurisdiction to be valid, as the main objective of Article 23 of the new Lugano Convention is to ensure that there is express and definite consent between the parties as to international jurisdiction. The plaintiff did not claim to have informed the defendant of the jurisdiction clause or to have discussed or negotiated it when concluding the contract. Nor did the plaintiff allege that the defendant had previously entered into business relations with other undertakings active in the relevant sector, meaning that the defendant should have been aware of the relevant trade usages.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.