147 / 536
133
CYIL 7 ȍ2016Ȏ
THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE
a settled
case-law
. Alternatively the Court could have followed the interpretation
rule of usual meaning or asses the unique role of the concept of habitual residence
in Regulation 2201/2003.
The first solution opposed to the unique purpose of this Regulation and its
leading principle according to which jurisdiction in matters of parental responsibility
lies with the place of the child’s habitual residence.
124
Likewise, determination of
jurisdiction by habitual residence of the child is strictly shaped in the light of the
best interests of the child. Using the ostensive definition that explains the concept
of habitual residence as a centre of interests of the child must not necessarily be
in conformity with the best interests of the child principle and the principle of
proximity to which recital 12 of the Preamble refers to.
125
The second solution flows from the ordinary meaning of the term ‘residence’.
The term does not mean a mere physical presence at a particular place.
126
Residence
indicates a place where a person permanently lives and where he regularly returns.
It refers at the same time to home and housing. The meaning of the constituent of
habitual residence is, however, oscillated by many borderline situations. A person
can share two homes in different countries and alternatively dwell there. The usage
of the adjective ‘habitual’ thus has both an inclusive and exclusive consequence. The
term connected with the residence does not refer to an occasional or short sojourn
and not even to forced sojourns.
The Court opted for a third solution: a conceptual discontinuity, and thus it
stressed the unique role of the concept for the group of cases relating to parental
responsibility, including measures for the protection of the child.
127
The Court not
only omitted analogy but rejected the argument
a simili
as well, which it adhered
to and reasoned in other cases of social security law, tax law, staff regulations. The
Court used the argument that the concept of habitual residence, as settled in other
branches of Community law, could not be directly transposed to the issues regulated
by Art. (1) of the Brussels II
bis
Regulation.
124
Opinion of Advocate General Kokott delivered on 29 January 2009, Case C-523/07, paragraph 37.
125
See recital 12 of Regulation No 2201/2003 as follows: “The grounds of jurisdiction in matters of
parental responsibility established in the present Regulation are shaped in the light of the best interests
of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the
first place with the Member State of the child‘s habitual residence, except for certain cases of a change
in the child‘s residence or pursuant to an agreement between the holders of parental responsibility.”
126
CLIVE, Eric M.,
op. cit.
, p. 140.
127
Judgment of the Court (Third Chamber), 2 April 2009,
Proceedings brought by A
, C-523/07, paragraph
36: “The case-law of the Court relating to the concept of habitual residence in other areas of European
Union law (see, in particular, Case C-452/93 P
Magdalena Fernández
v
Commission
[1994] ECR
I-4295, paragraph 22; Case C-372/02
Adanez-Vega
[2004] ECR I-10761, paragraph 37; and Case
C-66/08
Kozłowski
[2008] ECR I-0000) cannot be directly transposed in the context of the assessment
of the habitual residence of children for the purposes of Article 8(1) of the Regulation.”