Višje sodišče v Ljubljani; 2017-09-07; I Cpg 638/2017
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2017:I.CPG.638.2017
Date: 2017-09-07
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82017SI0907(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a dispute between a company domiciled in Slovenia (hereinafter ‘the plaintiff’) and a company domiciled in Austria (hereinafter ‘the defendant’). The plaintiff sought the issue of a European order for payment as a consequence of unpaid payments arising from the termination of a contract for the provision services concluded between the parties. The plaintiff claimed that the place of performance of the obligation in question was located in Slovenia, claiming that this justifies the jurisdiction of the Slovenian courts.
The Okrožno sodišče v Kranju (hereinafter ‘the Court of First Instance’) held that it had jurisdiction in this case and the European order for payment was issued. The defendant objected against the order, and at the same time it also raised an objection alleging the lack of jurisdiction of the Slovenian courts, alleging that the relationship with the plaintiff was based on several sales contracts, in which the delivery of goods relied on an Ex Works Incoterms clause in favour of Vienna, which points to the fact that that the jurisdiction lies with the courts of Austria.
The Court of First Instance ruled that the relationship between the parties was not solely based on sales contracts, but also on additional services. Therefore, by invoking Article 7(1)(b) second indent of the Brussels I Regulation (recast) (1), the Court of First Instance held that the jurisdiction of the Slovenian courts is given according to the place where the services were provided, since, when considering the jurisdiction, the contract for the provision of services prevails over the sales contract.
The defendant appealed to the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) seeking to annul the first instance decision and to declare the lack of jurisdiction of the Slovenian courts or, alternatively, to refer the case back to the first instance court for further proceedings.
The Court of Appeal pointed out that it is indeed a dispute falling under the scope of the Brussels I Regulation (recast), but at the same time national law must also be taken into account, as the court must, throughout the proceedings, consider whether the case belongs within Slovenian jurisdiction or not. The jurisdiction must also be tested against objections of any party to the dispute alleging a lack of jurisdiction. The Court of Appeal agreed with the defendant that the Court of First Instance erred in its interpretation of the Brussels I Regulation (recast) in so far as it stated that Article 7 gives preference to service contracts over sales contracts, as this Regulation does not provide any hierarchy between these two types of contracts. However, the overall first instance conclusion was held correct, as the claims in the dispute were based on the services that followed the purchase of goods (advertising of some products in Slovenia carried out after the purchase). The obligation related to the plaintiff’s claim in these proceedings was undoubtedly defined as the service.
As the contract related to the claim in these proceedings was proved to be concerned with the provision of services, the Ex Works clause cannot be applied, as it was clearly agreed only with regard to the sale of goods. The Court of Appeal confirmed the jurisdiction of the Slovenian courts and dismissed the appeal as unfounded.
(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.