Nejvyšší soud České Republiky; 2012-09-19; 25 Nd 106/2012
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2012:25.ND.106.2012.1
Date: 2012-09-19
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82012CZ0919(51)_ENG_SUMJURE
JURE summary
JURE summary
M.P. (hereinafter "the defendant"), who is a Polish citizen, travelled on the Prague mass transport system without a valid ticket, for which he was fined. The carrier as the holder of the claim assigned this claim to the Czech company AQ fin (hereinafter "the plaintiff"), which took the defendant to the Okresní soud Bruntál-Krnov (hereinafter "the District court").
The District court pointed out that the defendant was a citizen of Poland, but his current domicile was not known, because he had not lived, for more than 10 years, at his permanent address and all postal consignments addressed to him were returned undelivered. All of the official mail was sent to him only fictitiously via court’s notice board. Based on this, the District court held that even if there is a foreign element in the proceedings, the Brussels I Regulation (1) could not be applied. The international jurisdiction of the Czech courts was based on a bilateral international agreement on legal aid (2). As the real domicile of the defendant was unknown, the District court declared its lack of jurisdiction and, based on § 11(3) of the OSŘ (3), asked the Nejvyšší soud (hereinafter "the Supreme Court") to decide which Czech court had local jurisdiction in this case.
Contradictory to the District court, the Supreme Court held the application of the Brussels I Regulation as possible, because the dispute covered a civil matter assumed by Article 1(1) of the Regulation and the Polish citizenship of the defendant serves as another presumption of its application. The determination of the local jurisdiction could be based, according to the Supreme Court, on Article 2 (defendant’s domicile) or Article 5(1) (place of performance of the obligation in question).
The Supreme Court pointed out that the primary question is whether the Brussels I Regulation could be applied in a case where the domicile of the defendant is unknown. The Supreme Court invoked the judgments of the Court of Justice of the European Union in cases C-292/10 (4) and C-327/10 (5), according to which, when the domicile of a defendant who is a Member State national is unknown, the application of the uniform rules of jurisdiction established by Brussels I Regulation instead of those in force in specific Member States meets the essential requirement of legal certainty and the objective, pursued by that Regulation, of strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and allow the defendant to reasonably to foresee before which court he may be sued. However, the court must make all possible and available steps to ascertain the current whereabouts of the defendant.
The Supreme Court held that District court did not carry out all of the necessary steps to identify the real domicile of the defendant (for example in cooperation with authorities in Poland). If such thorough investigation would fail, and the current domicile would still not be ascertained, and, at the same time, it would be evident that the defendant is not domiciled outside the European Union, then Article 5(1)(b) of the Brussels I Regulation must be applied, and the decisive element in the determination of jurisdiction is the place in a Member State, where, under the contract, the services were provided. The decisive factor, in this case, would be the place of transportation (Prague).
Therefore, the Supreme Court refused to determine the specific Czech court that should hear and decide this case, as this decision is evident directly from the application of the Brussels I Regulation.
(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) Smlouva o právní pomoci (42/1989 Sb.) (3) Zákon č. 99/1963 Sb. Občanský soudní řád (Code of Civil Procedure). (4) Judgment of the Court of Justice of 15 March 2012, G v Cornelius de Visser, C-292/10, ECLI:EU:C:2012:142. (5) Judgment of 17 November 2011, Hypoteční banka a.s. v Udo Lindner, C-327/10, EU:C:2011:745.