Višje sodišče v Kopru; 2021-03-09; IV Cp 8/2021
Decision by national courts in the field of European Union law — ECLI:SI:VSKP:2021:IV.CP.8.2021
Date: 2021-03-09
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82021SI0309(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Kopru (hereinafter ‘the Court of Appeal’), concerned the determination of habitual residence as a decisive criterion for establishing jurisdiction.
The Court of First Instance held that the plaintiff and her family had their last common habitual residence in Ireland and therefore declared that the Slovenian courts lacked the jurisdiction to decide on the plaintiff’s request. In accordance with both the new Brussels II Regulation (1) and the Council Regulation (EC) No 4/2009 (2), habitual residence constitutes the decisive connecting factor for determining jurisdiction.
The plaintiff appealed, arguing that the Court of First Instance had incorrectly assessed the facts of the case, which, in her view, could have established a connection to Slovenian jurisdiction, and that the Court of First Instance had committed several procedural errors.
The Court of Appeal reassessed the factual circumstances. The plaintiff’s family had been residing in Ireland for seven years; both minor children attend school there, and the plaintiff and the defendant had both been employed in Ireland until recently. The Court of Appeal upheld the conclusion of the Court of First Instance that the family had settled in Ireland and, through the parents’ employment and the children’s schooling, had become actively integrated into the economic and social life of that country. The plaintiff’s arguments that the children hold Slovenian citizenship, that the family maintains ties and property in Slovenia, and that they regularly visit Slovenia during school holidays were found irrelevant in determining habitual residence.
The Court of Appeal reiterated that one of the fundamental criteria for habitual residence is continuous physical presence of the family in a particular place over a certain period of time. This condition was not fulfilled in Slovenia. It further found that the Court of First Instance had sufficient grounds for its conclusion and that the alleged procedural and factual deficiencies were unfounded.
Accordingly, the Court of Appeal dismissed the 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.