Višje sodišče v Ljubljani; 2020-11-18; I Cpg 440/2020
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2020:I.CPG.440.2020
Date: 2020-11-18
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82020SI1118(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns an assessment of the nature of a claim that influenced the international jurisdiction and was resolved by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’).
The plaintiff brought a case before the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’) seeking a declaration of the right of exclusion and ownership of an immovable property situated in Croatia. The action was lodged after the insolvency proceedings of the defendant were commenced. The Court of First Instance declared a lack of its jurisdiction to hear the case, based on Article 24(1) and Article 27 of the Brussels I Regulation (recast) (1), since the property in question was situated in another Member State of the European Union.
The plaintiff appealed to the Court of Appeal, which cited the same provisions of the Brussels I Regulation (recast) as the Court of First Instance. The Court of Appeal added that the central question is whether the present action falls within the scope of this Regulation. The action was brought as part of the insolvency proceedings, whilst Article 1(2)(b) of this Regulation provides that ‘this Regulation shall not apply to bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons …’ Conversely, Article 6(1) of Regulation (EU) 2015/848 (2) provides that ‘The courts of the Member State within the territory of which insolvency proceedings have been opened in accordance with Article 3 shall have jurisdiction for any action which derives directly from the insolvency proceedings …’
The Court of Appeal referred to the case-law of the Court of Justice of the European Union, according to which the decisive fact is not the procedure under which the action is brought but the legal basis of the action. Therefore, it is necessary to determine whether the right or obligation giving rise to the claim arises under the general rules of civil and commercial law or under the special exceptions specific to insolvency proceedings.
In the present case, the plaintiff brought a claim for the recognition of ownership of the property. An action to enforce a proprietary right is possible outside the insolvency proceedings and could be subject to the rules on jurisdiction in civil and commercial matters. The fact that the claim was brought after the opening of insolvency proceedings does not change the nature of the claim. The decisive criterion for establishing jurisdiction under Regulation (EU) 2015/848 would be that the claim arises directly from and is closely connected to the insolvency proceedings, which was not the case in the present dispute.
Therefore, Article 24(1) of the Brussels I Regulation (recast) applies to the present case. Since the property is situated in Croatia, the Slovenian courts lack jurisdiction over this claim.
The appeal was held unfounded and was dismissed. The contested orders of lower courts were upheld.
(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.
(2) Regulation (EU) No 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings.