Višje sodišče v Ljubljani; 2018-09-19; II Cp 858/2018
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2018:II.CP.858.2018
Date: 2018-09-19
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82018SI0919(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, resolved by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), addressed a question of jurisdiction of the Slovenian courts
A natural person domiciled in Slovenia (hereinafter ‘the plaintiff’) and a company domiciled in Germany (hereinafter ‘defendant 3’) entered into a financial contract concerning the management of the plaintiff’s funds. The contract was concluded via an intermediate broker domiciled in Germany (hereinafter ‘defendant 1’) (1).
Following the financial losses incurred by the financial transactions made by defendant 3, the plaintiff brought an action before the Okrožno sodišče v Ljubljani (hereinafter ‘the Court of First Instance’). The Court of First Instance considered the plaintiff to be a consumer, invoked the Brussels I Regulation (recast) (2) and confirmed its international jurisdiction to hear the case.
Defendants 1 and 3 appealed, arguing that even if the plaintiff was a natural person, it cannot be regarded as consumer due to the specific purpose of the contract, which included speculative financial transactions. They asked the Court of Appeal to refer the question to the Court of Justice of the European Union (CJEU) to provide interpretation on this issue. The defendants admitted that the transfer was made from the plaintiff’s bank account in Slovenia, however, they relied on the judgment of the CJEU in Case C-12/15 (3), according to which a financial transfer was not a sufficient connecting factor to establish jurisdiction.
The Court of Appeal held that the contracts concerning risky and speculative financial transactions cannot be excluded from the meaning of Article 17 of the Brussels I Regulation (recast). It is not necessary to refer the preliminary question to the CJEU, since the conditions for such referral are not met, moreover, the CJEU has already provided interpretation of Article 17 concerning the concept of a ‘consumer’ several times. Three conditions must be met: 1) the consumer acts outside his trade or profession, 2) the contract was concluded with a person who pursues commercial or professional activities and 3) that contract falls into one of the categories stipulated by Article 17(1)(a) to (c). Defendant 1 is also subject to the jurisdiction rules over consumer contracts, since his brokering services are closely related to the consumer contract in question.
The Court of Appeal held that the jurisdiction of the Slovenian courts was given also on the basis of special jurisdiction in matters relating to tort, delict or quasi-delict pursuant to Article 7(2) of the Brussel I Regulation (recast)), according to which the jurisdiction lies with the courts where ‘under the contract, the services were provided or should have been provided’. Since the plaintiff obtained the information about the contract in Slovenia and deposited the funds from its bank account in Slovenia, there was no doubt that the place referred to in Article 7(2) lies in Slovenia. The CJEU’s Case C-12/15 relates to a different factual background and cannot be directly applied to the current case.
The Court of Appeal found no grounds to grant the appeal. The appeal was dismissed, and the first instance decision was upheld.
(1) Note: the position of the defendant 2 was not clarified in this judgment.
(2) 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.
(3) Judgment of the Court of 16 June 2016, Universal Music International Holding BV v Michael Tétreault Schilling and Others, C-12/15, ECLI:EU:C:2016:449.