Višje sodišče v Kopru; 2024-03-14; Cpg 9/2024
Decision by national courts in the field of European Union law — ECLI:SI:VSKP:2024:CPG.9.2024
Date: 2024-03-14
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Slovenia

82024SI0314(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Kopru (hereinafter ‘Court of Appeal’), concerned the validity of a clause conferring jurisdiction that was referenced only by a hyperlink in the purchase orders.
In a commercial dispute between the parties, the plaintiff alleged that the purchase orders concluded between them referred, by a hyperlink, to an online version of the plaintiff’s General Terms and Conditions, which contain a clause conferring jurisdiction on the Slovenian courts. Relying on Article 23 of the new Lugano Convention (1), it commenced proceedings before the Okrožno sodišče (hereinafter ‘the Court of First Instance’).
The Court of First Instance held that this online reference was insufficient to establish jurisdiction under the new Lugano Convention. It relied on Estasis Salotti Case 24/76 (2), in which the Court of Justice of the European Union held that the requirement of writing is satisfied only where the reference to a jurisdiction clause is express and can be verified by a party exercising reasonable care.
The plaintiff appealed, arguing that this case law was superseded by the more recent judgment in Case C-358/21 (3), in which the Court of Justice held that a ‘jurisdiction clause is validly concluded where it is contained in the general terms and conditions to which the contract concluded in writing refers by the inclusion of a hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed prior to that contract being signed, without the party against whom that clause operates having been formally asked to accept those general terms and conditions by ticking a box on that website’.
The Court of Appeal confirmed that the dispute must be assessed under the new Lugano Convention and interpreted in accordance with the case-law of the Court of Justice of the European Union. It agreed that Case C-358/21 supersedes the earlier Estasis Salotti line of authority and held that, in the present case, the defendant — a commercial entity — had the possibility to access, download or print the General Terms and Conditions before confirming the order. The General Terms and Conditions clearly conferred jurisdiction on the Slovenian courts. Therefore, the clause conferring jurisdiction was validly agreed.
The Court of Appeal therefore upheld the appeal and amended the decision of the Court of First Instance, ruling that the Slovenian courts have international jurisdiction to hear the dispute. It also annulled the decision on costs and remitted the matter to the Court of First Instance for a new decision.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Judgment of the Court of Justice of 14 December 1976, Estasis Salotti di Colzani Aimo e Gianmario Colzani s.n.c. v Rüwa Polstereimaschinen GmbH, Case 24-76, ECLI:EU:C:1976:177.
(3) Judgment of the Court of Justice of 24 November 2022, Tilman SA v Unilever Supply Chain Company AG., C-358/21, ECLI:EU:C:2022:923.