Višje sodišče v Ljubljani; 2024-09-11; III Cp 1130/2024
Decision by national courts in the field of European Union law — ECLI: ECLI:SI:VSLJ:2024:III.CP.1130.2024
Date: 2024-09-11
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82024SI0911(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, decided by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the international jurisdiction of the Slovenian courts in proceedings relating to the alleged breach of the pre-emption right of members upon the transfer of a business share in a Slovenian company.
Two members of company A, resident in Slovenia (hereinafter ‘the plaintiffs’), each held a 22.5 % business share. Another member, domiciled in Malta (hereinafter ‘the defendant’), held a 55 % business share, which he had acquired from company B. The plaintiffs brought proceedings seeking annulment of the share-transfer agreement concluded between company B and the defendant, and conclusion of an equivalent agreement with them under the same conditions. They relied on the jurisdiction clause contained in the disputed share-transfer agreement and invoked Article 25 of the Brussels I Regulation (recast) (1).
The Court of First Instance held that the Slovenian courts lacked international jurisdiction, annulled the procedural steps already taken and dismissed the action. It found that the plaintiffs were not parties to the share-transfer agreement and therefore could not rely on its jurisdiction clause. Accordingly, jurisdiction lay under the general rule with the courts of the Member State in which the defendant was domiciled, namely Malta.
On appeal, the plaintiffs also relied on Article 7(1)(a) of the Brussels I Regulation (recast), arguing that the place of performance of the obligation at issue was in Slovenia.
The Court of Appeal confirmed that the plaintiffs, as third parties, could not rely on the jurisdiction clause contained in a contract to which they were not parties, nor could jurisdiction be based on a future contract whose conclusion they were seeking in the proceedings. It nevertheless held that the dispute fell within ‘matters relating to a contract’ within the meaning of Article 7(1)(a), since the claim was based on obligations voluntarily assumed in the company agreement, in particular the contractual pre-emption arrangements governing transfers of business shares.
As regards the place of performance, the Court of Appeal held that the obligation at issue was the conclusion of a share-transfer agreement with the pre-emption holders, not the subsequent implementation of that agreement. Therefore, in response to the plaintiffs’ reliance on Article 7(1)(a) of the Brussels I Regulation (recast) on appeal, the Court of Appeal held that the place where the change of membership would later be entered in the court register could not be equated with the place of performance of the obligation at issue. As the company agreement did not specify the place of performance, that issue had to be determined under Slovenian law. Pursuant to Article 294(2) of the OZ (2), the non-monetary obligation had to be performed at the debtor’s domicile. As the defendant was domiciled in Malta, the Slovenian courts lacked jurisdiction under Article 4 of the Brussels I Regulation (recast), just as they lacked jurisdiction both under Article 7(1)(a) and Article 25 of that Regulation.
The Court of Appeal therefore dismissed the appeal and upheld the order of the Court of First Instance.
(1) 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 matters (recast).
(2) Obligacijski zakonik (Obligations Code).