Višje sodišče v Ljubljani; 2022-04-12; II Cp 1677/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2022:II.CP.1677.2021
Date: 2022-04-12
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Slovenia

82022SI0412(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the applicable law in a cross-border consumer dispute arising from the alleged purchase of a vehicle.
A Swiss citizen (hereinafter ‘the plaintiff’) brought an action against a Slovenian company (hereinafter ‘defendant 1’), its legal representative (‘defendant 2’), and a third person allegedly assuming liability (‘defendant 3’). The plaintiff claimed that, after receiving an offer from defendant 1, he entered into a contract to purchase a Porsche Cayenne, with the defendants undertaking to import the vehicle into Switzerland. When importation proved impossible, the defendants delivered a substitute Audi A4 for temporary use. The plaintiff later withdrew from the contract and requested that the defendants collect the Audi in Switzerland, which they refused. He therefore sought repayment of the purchase price, reimbursement of customs duties, garage costs for the Audi, and legal advice costs. The defendants disputed having contracted with the plaintiff, raised limitation defences and contested liability.
The Okrožno sodišče (hereinafter ‘the Court of First Instance’) had held, pursuant to Article 6 of the new Lugano Convention (1), that Slovenian courts had jurisdiction. Applying the Rome I Regulation (2), it characterised the claim for repayment of the price as unjust enrichment and the remaining claims as business liability. It held that the underlying relationship constituted a consumer contract and that defendant 1 had directed its commercial activity from Slovenia to Switzerland by offering and concluding the contract by telephone with a Swiss-domiciled consumer. Under Article 6(1)(b) of the Rome I Regulation, Swiss law therefore governed the claims. Applying Swiss law, the Court of First Instance found the claims for repayment of the purchase price and customs duties time-barred, the claim for garage fees partly time-barred and otherwise unfounded (since, after withdrawal, the Audi A4 constituted a loan for use which the plaintiff was obliged to return to Slovenia), and the claim for legal advice costs accordingly unfounded.
The plaintiff appealed, arguing that a single telephone offer could not amount to ‘directing activities’ within the meaning of Article 6(1)(b) of the Rome I Regulation and that Slovenian law should therefore apply. He further alleged misapplication of Swiss limitation rules and incorrect assessment of the loan arrangement, together with procedural errors.
The Court of Appeal dismissed the appeal. It confirmed that even a single offer and conclusion of a contract by telephone may constitute directing commercial activity into the consumer’s state and that the protective regime of Article 6(1)(b) of the Rome I Regulation is mandatory and cannot be waived by the consumer. It upheld the lower court’s interpretation of the relevant provisions of Swiss law and held that the plaintiff’s submissions concerning Swiss case-law were inadmissible novelties. No procedural violations were found.
Accordingly, the Court of Appeal upheld the judgment of the Court of First Instance and ordered the plaintiff to reimburse the defendants’ appeal costs.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).