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DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
convergent or interchangeable in the doctrine, legislation and judicial decisions. As
shown, the content of both concepts are interdependent.
The concept of habitual residence was inserted into the law of the Communities
in its very early development. At that time the Community law was also regarded
as a branch of international law. It appears that historical deeds and affairs are
repeating. The concept of habitual residence was first used in social law. From
this field it penetrated into tax law and law of staff. It was not defined in any of
the secondary acts. The Court of Justice explained the content of the concept of
habitual residence in the
Angenieux
case by ostensive definition. The Court gave the
concept a common role. After that the concept was taken by family law. It started
to be used in various sources: international convention and regulations relating to
parental responsibility and child protection. In the case
Proceedings brought by A
the
Court did not apply the ostensive definition of habitual residence. It delimitated the
factual concept of habitual residence based on the descriptive definition instead.
Diachronic observation of the development of the factual concept of habitual
residence in different legal domains supports the hypothesis that the role of the
concept determines its content.