Višje sodišče v Ljubljani; 2021-08-09; IV Cp 1181/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2021:IV.CP.1181.2021
Date: 2021-08-09
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82021SI0809(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the determination of habitual residence for the purposes of establishing jurisdiction.
The Court of First Instance relied on the new Brussels II Regulation (1) and Council Regulation (EC) No 4/2009 (2) and dismissed the mother’s (hereinafter ‘the plaintiff’) application relating to the minor children, declaring that it lacked jurisdiction to hear the case. According to the Court of First Instance, the children’s habitual residence was in Germany.
The plaintiff appealed, arguing that the Court of First Instance had incorrectly determined the children’s habitual residence because it had failed to take into account that the children had been unlawfully removed by their father. She also alleged a misapplication of Article 3(1)(a), sixth indent, and Article 10 of the new Brussels II Regulation.
The Court of Appeal confirmed that the assessment of the habitual residence of both the plaintiff and the children was decisive for determining jurisdiction. Under Article 3(1)(a), sixth indent, of the new Brussels II Regulation, Slovenian courts would have jurisdiction if the plaintiff had her habitual residence in Slovenia and had resided there for at least six months immediately before the application was made. However, this condition was not met; therefore, the grounds of appeal based on that provision are unfounded.
As regards the habitual residence of the children, the Court of Appeal emphasised that the concept of habitual residence ‘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’ (see Case C-523/07 (3) of the Court of Justice of the European Union). The Court of Appeal thoroughly assessed the facts. It upheld the findings of the Court of First Instance that the children were habitually resident in Germany, as shown by their long-term residence, integration into the local environment, and command of the German language.
The references to Articles 10 (Jurisdiction in cases of child abduction) and 11 (Return of the child) of the new Brussels II Regulation were found to be irrelevant. Those provisions presuppose that the court retains the jurisdiction it had in respect of the child’s habitual residence.  However, in the present case, the Slovenian court never had such jurisdiction.
The plaintiff’s request for interim measures under Article 20 of the new Brussels II Regulation was likewise unfounded, as correctly held by the Court of First Instance. The situation of the children, who were living with their mother in a safe house, did not indicate any imminent risk that would justify urgent intervention by a court lacking jurisdiction.
Accordingly, the Court of Appeal dismissed all grounds of appeal as unfounded and upheld the decision of the Court of First Instance.
(1) 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.
(2) Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
(3) Judgment of the Court of Justice of 2 April 2009, C-523/07, ECLI:EU:C:2009:225.