Višje sodišče v Ljubljani; 2016-09-28; V Cpg 1060/2016
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2016:V.CPG.1060.2016
Date: 2016-09-28
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82016SI0928(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a dispute concerning a payment of EUR 3,375,003 between A. on one side and T.S. and B. on the other side. There were two proceedings between the parties. In the first proceedings, A. was the plaintiff and T.S. and B. were the defendants. This case regards proceedings where T.S. and B. (hereinafter ‘the plaintiffs’) raised a counter-claim against A. (hereinafter ‘the defendant’).
The case was considered by the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’), where the defendant cited a jurisdiction clause, where the parties agreed that the courts in Ljubljana or in Luxembourg should have jurisdiction, depending on which party initiates the proceedings, and the defendant objected alleging the lack of jurisdiction of the Slovenian courts.
The Court of First Instance held that the proceedings based on the counter-claim are so closely connected to the already running proceedings between the parties that it is expedient to hear and determine them by the same court. The objection of the defendant was dismissed.
The defendant appealed before the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) alleging, among other things, an incorrect application of Articles 6 and 23 of the Brussels I Regulation (1).
The Court of Appeal confirmed that the basis for counter-claim action is defined in Article 6(3) of the Brussels I Regulation. It is true that Article 23 (agreement on jurisdiction) provides an exemption to the general rule on counter-claims as set out in Article 6(3), however, the Court of Appeal further cited Article 27 (List pendens - related actions) of the Regulation that regards proceedings involving the same cause of action and between the same parties. In such case, ‘where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court’. The Court of Appeal held that such situation occurred here, which was supported by the judgment of the Court of Justice of the European Union in Case C-144/86 (2), according to which ‘the concept of list pendens … covers a case where a party brings an action before a court … for the rescission or discharge of an international sales contract whilst an action by the other party to enforce the same contract is pending before a court in another … state’ and Case C-406/92 (3), according to which ‘an action seeking to have the defendant held liable for causing loss and ordered to pay damages has the same cause of action and the same object as earlier proceedings brought by that defendant seeking a declaration that he is not liable for that loss’.
Since the Court of Appeal concluded that the proceedings concerning the counter-claim involved the same cause of action between the same parties, it held that the jurisdiction lay with the Court of First Instance. Therefore, the appeal was rejected.
(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) Judgment of the Court of Justice of 8 December 1987, Gubisch Maschinenfabrik KG v Giulio Palumbo, C-144/86, ECLI:EU:C:1987:528.
(3) Judgment of the Court of Justice of 6 December 1994, The owners of the cargo lately laden on board the ship "Tatry" v the owners of the ship "Maciej Rataj", C-406/92, ECLI:EU:C:1994:400.