CYIL Vol. 7, 2016

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.

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