Višje sodišče v Mariboru; 2019-09-10; I Cp 761/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSMB:2019:I.CP.761.2019
Date: 2019-09-10
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Slovenia

82019SI0910(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of the international jurisdiction of the Slovenian courts resolved by the Višje sodišče v Mariboru (hereinafter ‘the Court of Appeal’) in a dispute concerning real property situated in Slovenia (hereinafter ‘the property’).
A natural person domiciled in Slovenia (hereinafter ‘the plaintiff’) was one of two co-owners of the property, whilst the other co-owner (hereinafter ‘the defendant’) was domiciled in Switzerland. The plaintiff brought an action against the defendant before the Okrožno sodišče v Mariboru (hereinafter ‘the Court of First Instance’) seeking to receive from him a share in the profits related to the ownership of the real property by reason of their co-ownership, but the defendant challenged the jurisdiction of the Slovenian courts. The Court of First Instance invoked Article 2 of the new Lugano Convention (1), according to which ‘persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State’. It dismissed the plaintiff’s complaint that the case falls under the provisions governing exclusive jurisdiction ‘in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property’, according to which the jurisdiction shall lie with ‘the courts of the State … in which the property is situated’ (Article 22(1) of the new Lugano Convention). The Court of First Instance therefore declared a lack of its jurisdiction to hear this case.
The plaintiff appealed before the Court of Appeal alleging an erroneous application of the new Lugano Convention and a wrong material and procedural assessment of the evidence, since the plaintiff alleged that the defendant was still a citizen of Slovenia only temporarily living in Switzerland. The Court of Appeal however held that the wording of the new Lugano is very clear: the relevant criterion is the actual domicile of the sued person, not its citizenship. The Swiss domicile of defendant was reliably proven by an official certificate provided by the defendant. The Court of Appeal also upheld the first instance conclusions concerning the assessment of exclusive jurisdiction in proceedings which have as their object rights in rem in immovable property. This dispute was considered to have a different object – the plaintiff’s claim for payment was classified as a plea of unjust enrichment, not as a question of tenancy or any other question related to rights in rem to the property.
As the defendant was domiciled in Switzerland, and neither the exclusive jurisdiction had been given, nor an agreement conferring jurisdiction in favour of Slovenian courts was agreed between the parties, moreover, the defendant challenged the jurisdiction, the Court of Appeal concluded that the Slovenian courts lack the jurisdiction. Therefore, the first instance decision was upheld, and the appeal was dismissed as unfounded.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.