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DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
concluded among the member states of the European Community. The 1968
Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil
and Commercial Matters intervened into the sovereignty of member states in the
name of the paramount purpose: to simplify the free movement of judgements.
107
Provisions on jurisdiction contained either domicile or nationality or habitual
residence.
108
The concept of habitual residence was further used by the Brussels
Convention on Jurisdiction and the Recognition and Enforcement of Judgments in
Matrimonial Matters of 1998.
109
Neither the Brussels nor Hague Conventions included a provision explaining
the concept of habitual residence. Explanatory reports turned watchful attention to
the judgments of the Court of Justice.
110
It only modestly developed the ostensive
definition of habitual residence originally adopted by the Court of Justice in the
Angenieux
case. The court did not intend to reach absolute improvement of it and
submit the definition of habitual residence in an explicative form.
111
Such a result
would be contrary to settled practice where the Court of Justice and the Court of
First Instance used to use analogy and legal argument a
simili
.
The second Brussels Convention was instantly replaced by the regulation called
in short the Brussels II Regulation.
112
This secondary act was derogated by new
Regulation No. 2201/2003 which gained the name Brusel II
bis
.
113
The model for
the latter regulation was the 1996 Convention on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co-operation in Respect of Parental Responsibility
and Measures for the Protection of Children.
114
Article 5 (1) confers upon the judicial
107
Official Journal L 299,
31/12/1972, pp. 32-42.
108
See Articles 5 (2), 15 (3) and 59.
109
Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and
the Recognition and Enforcement of Judgments in Matrimonial Matters – Declaration, annexed to the
minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998
when drawing up the Convention on Jurisdiction and the Recognition and Enforcement of Judgments
in Matrimonial Matters. Official Journal C 221, 16/07/1998, pp. 2-18.
110
BORRÁS Alegría. Explanatory report on the Convention, drawn up on the basis of Article K.3 of
the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments
in Matrimonial Matters (approved by the Council on 28 May 1998), Official Journal, 16/7/1998,
C 221/27.
111
Ibid
., § 32: “However, although not applicable under the 1968 Brussels Convention, particular account
was taken of the definition given on numerous occasisons by the Court of Justice, i.e. ‘the place where
the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the
relevant facts being taken into account for the purpose of determining such residence’.”
112
Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and in matters of parental responsibility for children
of both spouses, Official Journal L 160/19, 30/6/2003.
113
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the
recognition and enforcement of judgments in matrimonial matters and the matters of parental
responsibility, repealing Regulation (EC) No 1347/2000, Official Journal L 338 , 23/12/2003, pp. 1-29.
114
Commission proposal for a Council Regulation concerning jurisdiction and the recognition and