CYIL Vol. 7, 2016

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.”


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