148 / 536
134
DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
The Court retained the factual content of the concept of habitual residence.
Moreover, it adjudicated a flexible character to it.
128
The Court explained the
substance of the concept of habitual residence in the
Proceedings brought by A
by
the means of a descriptive definition:
Therefore, the answer to the second question is that the concept of ‘ habitual
residence’ under Article 8(1) of the Regulation must be interpreted as meaning that
it corresponds to the place which reflects some degree of integration by the child
in a social and family environment. To that end, in particular the duration,
regularity, conditions and reasons for the stay on the territory of a Member State and
the family’s move to that State, the child’s nationality, the place and conditions of
attendance at school, linguistic knowledge and the family and social relationships of
the child in that State must be taken into consideration.
The definition comprises a constituent ‘some degree of integration by the child
in a social and family environment’. Integration into an urban community, i.e. into
its social and religious life, was bound to the component (factum) of the Roman
concept of domicile of choice. Following to the opinion of Advocate General Kokott
in the case
Proceedings brought by A
, the constituent quoted above gains the
character of common factual criterion.
129
Besides this common criterion the Court
points to the indispensable application of specific factual criteria. Their enumeration
is not exhaustive. Application of criteria must be holistic in nature. All known
circumstances of a single case must be taken into account.
130
In this respect both
the Court of Justice and the Court of First Instance applied the concept of habitual
residence consistently since in the first cases mentioning it.
Specific circumstances of the
Mercredi
case, a two month old baby, prompted
the Court of Justice to consider further criteria.
131
The Court articulated its legal
opinion as for
animus
of the person holding parental responsibility. The Roman
concept of domicile was built on the binary structure
factum
and
animus
. However,
the Court does not handle intent as one of the components of a legal concept but as
a factual criterion. The Court in this respect considered a temporary question of the
128
LENAERTS, Koen. The Best Interests of the Child Always Come First: The Brussels II
bis
Regulation
and the European Court of Justice. J
urisprudence
, 2013, Vol. 20, No. 4, p. 1306.
129
Opinion of Advocate General Kokott delivered on 29 January 2009, Case C-523/07, paragraph 48:
“The familial situation is characterised by the persons with whom a child lives at the place of residence
or is in regular contact, in other words parents, siblings, grandparents or other close relatives. For
social integration, circumstances such as school, friends, leisure activities and, above all, command of
language are important.”
130
Judgment of the Court (Third Chamber), 2 April 2009,
Proceedings brought by A
, C-523/07,
paragraph 37: “The ‘habitual residence’ of a child, within the meaning of Article 8(1) of the Regulation,
must be established on the basis of all the circumstances specific to each individual case.”
131
Judgment of the Court (First Chamber), 22 December 2010,
Barbara Mercredi v Richard Chaffe
,
C-497/10 PPU, paragraph 50.