CYIL Vol. 7, 2016

DALIBOR JÍLEK – JANA MICHALIČKOVÁ CYIL 7 ȍ2016Ȏ concluded among the member states of the European Community. The 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters intervened into the sovereignty of member states in the name of the paramount purpose: to simplify the free movement of judgements. 107 Provisions on jurisdiction contained either domicile or nationality or habitual residence. 108 The concept of habitual residence was further used by the Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters of 1998. 109 Neither the Brussels nor Hague Conventions included a provision explaining the concept of habitual residence. Explanatory reports turned watchful attention to the judgments of the Court of Justice. 110 It only modestly developed the ostensive definition of habitual residence originally adopted by the Court of Justice in the Angenieux case. The court did not intend to reach absolute improvement of it and submit the definition of habitual residence in an explicative form. 111 Such a result would be contrary to settled practice where the Court of Justice and the Court of First Instance used to use analogy and legal argument a simili . The second Brussels Convention was instantly replaced by the regulation called in short the Brussels II Regulation. 112 This secondary act was derogated by new Regulation No. 2201/2003 which gained the name Brusel II bis . 113 The model for the latter regulation was the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. 114 Article 5 (1) confers upon the judicial 107 Official Journal L 299, 31/12/1972, pp. 32-42. 108 See Articles 5 (2), 15 (3) and 59. 109 Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters – Declaration, annexed to the minutes of the Council, adopted during the Justice and Home Affairs Council on 28 and 29 May 1998 when drawing up the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters. Official Journal C 221, 16/07/1998, pp. 2-18. 110 BORRÁS Alegría. Explanatory report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (approved by the Council on 28 May 1998), Official Journal, 16/7/1998, C 221/27. 111 Ibid ., § 32: “However, although not applicable under the 1968 Brussels Convention, particular account was taken of the definition given on numerous occasisons by the Court of Justice, i.e. ‘the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence’.” 112 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, Official Journal L 160/19, 30/6/2003. 113 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, Official Journal L 338 , 23/12/2003, pp. 1-29. 114 Commission proposal for a Council Regulation concerning jurisdiction and the recognition and

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