ZPP- E: FUNDAMENTAL PRINCIPLES AND COURT JURISDICTION

Polona Podlesnik

 

ZPP- E Amendment, that became applicable on the September 14th, covers several fields. The present contribution will present the changes in the field of principles and court jurisdiction.

One of the primary goals of the amendment is the procedure acceleration, to which the inclusion of the principle of care among the fundamental procedure principles should contribute.

The principle of care makes clear, that the court, parties and other participants must effectively work towards a procedure without delay, and with minimized costs. The parties of the procedure are obliged to enforce their rights with diligence and primarily with the awareness, that the procedure must be carried out as soon as possible (Article 11).

In this respect Dr. Galič, who is the author of the introduction explanations of the act, recalls that this is not really a novelty, since the Constitutional Court pointed out the importance of active conduct of parties in the procedure already several times in the past. Notwithstanding, the amended provision has got an important consequence- assessing the procedural situations should from now on also take into account this fundamental principle.

The amendment confers many modifications on the field of court jurisdiction:
-the rule, that the Court retains jurisdiction (during litigation) no matter the circumstance modifications, which otherwise affect the jurisdiction, is now applicable among various types of courts (Article 17), therefore e.g. also among courts with general jurisdiction and labour courts,
-besides the district court, it is now possible also that the local court declines its subject- matter jurisdiction, namely only with a preliminary action test, and later only, if the defendant raises an objection (Article 19, accordingly also the provisions about absolute infringements of civil procedure provisions have been modified- fourth point of the second paragraph of Article 339),
-the court decides by order, if the value of the matter at issue is properly identified, namely also on a proposal, not only ex officio; as a matter of course (Article 44).

Probably the most important amended provisions from the parties perspective, are the provisions about the territorial jurisdiction in the favour of parties, whose are weaker by status– consumers and the insured personsof insurance contracts (Articles 51.a and 51.b). The latter provisions allow that 1. The weaker party can sue the counterparty in the place of her residence, 2. The weaker party can be sued only in the place of her residence 3. All jurisdiction arrangements, contained in the concluded contract, are forbidden, such arrangements are admissible only if they are concluded after the dispute has arisen. As a main rule, contracts that are concluded massively contain standard terms, and they contain territorial jurisdiction clauses, which are in the benefit of the party, which submits standard terms (therefore undertaking or merchant). Such clauses are, according to the new regulation, null, as the purpose of the latter regulation is protection of the weaker party (in the financial meaning, knowledge of law and with that the possibility of enforcing claims etc.)- consumer or the insured person.

The amended provisions regarding territorial jurisdiction of courts in case of a dispute, arising from a consumer relationship, also have an effect on the relationships between attorneys and their principals- those are consumers in an attorney- principal relations. The power of attorney is usually in a form of a standard form and contains a provision about the territorial jurisdiction of courts for disputes, which arise from the attorney/principal contract- this provision is usually established by the residence of the attorney office.

The regulation regarding territorial jurisdiction in the benefit of weaker parties was summarised by the regulation in Brussels I Regulation. The legislator therefore took the regulation, which was applicable on an international level, and transferred it into the national level, however with inconsistency (comparing to Brussels I Regulation). ZPP- E did not assume the provision, with which the court would be obliged to inform the consumer or the insured person about the declined jurisdiction of the court. ZPP contains a rule, that if the defendant does not object that the court has no jurisdiction, the court seised shall have jurisdiction, according to Article 22 of the act, what basically means, that the territorial jurisdiction clause remains applicable. The situation could theoretically be repaired with the rule, that the court verifies nullity ex officio.

It follows that although the purpose of amended provision was to ensure greater legal certainty (protection) of weaker parties, could the achievement of this purpose be questionable. Additionally, the cost aspect of amended provisions is also questionable- although the provisions should lower the costs of weaker parties, it may happen, that they make them significantly higher. The principle of success should be taken into account- the party in the benefit of which is not ruled, covers the expenses, including the attorney expenses of the counterparty. In so far the counterparty and/or her attorney will have residence in a place, distant from the court seised, that will of course affect the costs of the procedure. It can be concluded, that the answer about genuine usefulness and the effect of the amended provision will be given only in practice.

1 See Decision US RS no. Up-2443/08 of October 7 2009, UL RS, no. 84/09. Available at: http://odlocitve.us-rs.si/sl/odlocitev/US28860?q=2443%2F08 (29.08.2017).
2 Summarized by the Civil Procedure Act (ZPP), unofficially consolidated text, with introduction explanations of the amendments of the Act and subject index by Aleš Galič, 6., supplemented edition, Ljubljana, UL RS 2017, pages 15- 16.
3 Provisions of Article 51.b contain some detailed amended provisions regarding insurance relationships.
4 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Available at: http://eur-lex.europa.eu/legal-content/SL/ALL/?uri=CELEX%3A32012R1215 (29.08.2017).
5 Summarized by the Civil Procedure Act (ZPP), unofficially consolidated text, with introduction explanations of the amendments of the Act and subject index by Aleš Galič, 6., supplemented edition, Ljubljana, UL RS 2017, pages 16- 20.