Summary
The fact that a person who has granted a power of attorney ad litem lacks the relevant representative powers cannot be objected for the first time during the special proceedings for a preliminary ruling on jurisdiction. In fact in any case, the legal capacity to sue or be sued (capacita` processuale) of a foreign entity shall be ascertained based on the relevant foreign national law pursuant to Article 25 of Law No 218/1995, and the party raising said objection has the burden of proof with respect thereto. The fact that a party raises a defence on the merits in an opposition against a summary injunction does not imply its acceptance of the Italian jurisdiction, if said defence is subject to the rejection of the exception of lack of jurisdiction. A clause conferring jurisdiction to English courts – which is contained in a framework confidentiality agreement entered into between an Italian company and English company – is not relevant for the purposes of determining whether Italian courts have jurisdiction pursuant to Article 23 of Regulation (EC) No44/ 2001 over a dispute concerning the breach of the obligation to pay the price under two working orders entered into between the same companies. In fact, the existence of a unitary procedural relationship shall be excluded due to the lack of any express cross-reference between the framework agreement and the two working orders. Similarly, the possible functional link between said agreement and the two orders is not relevant, since said link does not even constitute a criterion for special jurisdiction pursuant to Articles 6 and 7 of said EC Regulation. Pursuant to Articles 2 and 60 of Regulation (EC) No 44/2001, Italian courts do not have jurisdiction over an action for breach of the obligation to pay the price under two working orders, which has been brought by an Italian company against an English company. In fact, based on what results from Article 7 of Regulation (EC) No2157/2001 of 8 October 2001 on the Statute for a European Company and from Article 3 of Regulation (EC) No1346/2000, the statutory seat of the company named as defendant is located in the United Kingdom, and it shall be presumed, absent any proof to the contrary, that the other two factual elements mentioned by Article 60 for the purpose of determining the domicile of a company (i.e. the central administration and principal place of business) are located in the same State. In this respect, the circumstance that a branch of said company is situated in Italy is irrelevant , even if a legal representative with general powers is based at said branch. For the purpose of the aforesaid contrary proof, the court seised shall apply, pursuant to Article 59 of said EC Regulation, the law applicable according to its own conflict-of-law rules, and therefore it shall refer to Article 46 of the Civil Code. Pursuant to Article 5(1)(b), second hyphen of Regulation (EC) No 44/2001, Italian courts do not have jurisdiction over an action for breach of the obligation to pay the price under two working orders, which has been brought by an Italian company against an English company, since the relevant contractual relationship – even though it does not qualify as a service contract (appalto di servizi) under the relevant provisions of the Civil Code – falls within the autonomous concept of provision of services. Therefore, regard shall be made to the place where the service has been rendered, i.e., in the present case, Austria.