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DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
The Regulations itself govern concurring legal states: relations to international
treaties
120
and specifically to the Hague Child Protection Convention,
121
as they are
of the same or similar subject- matter. Although the Council of the European Union
placed careful efforts in exclusion of non-conformity of obligations, these relations
must have been resolved without the possibility to apply the principles of
lex specialis
and
lex posterior
.
Regulation No. 2201/2003 stipulates autonomously its own applicability
precedence under the restricting condition that a child has his habitual residence
on the territory of a member state of the European Union. Any formal relation of
precedence originated between the mentioned Conventions and the Brussels II
bis
Regulation.
The Conventions mentioned in both provisions together with the Brussels II
bis
Regulation utilized the concept of habitual residence. Should these instruments
establish semantic uniformity, the concept of habitual residence must be uniformly
interpreted.
122
Such interpretation should relate to all fields of Union law. Another
consequence imposes the requirement of uniform interpretation of the concept of
habitual residence by all European Courts, national court and national authorities
irrespective of normative connotations.
123
This is not only a comprehensive idea but
also an ideal state where the concept possesses the characteristics of generality and
clarity in each legal situation and pursuant to any binding rule. The content of the
concept remains always uniform. Such a concept could play a central role.
The Brussels II
bis
Regulation covers Art. 8 (1) which includes the constituent
of habitual residence.
The courts of a Member State shall have jurisdiction in matters of parental
responsibility over a child who is habitually resident in that Member State at the
time the court is seised.
During the case
Proceedings brought by A
the Court could reach either the
point of continuity or break. The Court could have applied the ostensive definition
adopted in the
Angenieux
case also for other branches of union law. Pursuant to
this definition the habitual residence of an individual was a place where the centre
of his interests was. The ostensive definition played a crucial role as it produced
120
See Article 60 of Regulation No 2201/2003.
121
See Article 61 of Regulation No 2201/2003 as follows: “As concerns the relation with the Hague
Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and
Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, this
Regulation shall apply: (a) where the child concerned has his or her habitual residence on the territory
of a Member State.
122
Opinion of Advocate General Kokott delivered on 29 January 2009, Case C-523/07, reference for
a preliminary ruling from the
Korkein hallinto-oikeus
(Finland).
123
The Supreme Court, Judgment given on 3 February 2016,
In the Matter of B
(
A child
), p. 11.