Oberster Gerichtshof, Urteil vom 16/11/2010 5 Ob 194/10f
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2010:RS0126369
Date: 2010-11-16
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82010AT1116(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
Within the context of a dispute concerning parental responsibility, an appeal was made to the Oberste Gerichtshof (AT). The question arose of how the term of "habitual residence" in the Regulation 2201/2003 ("Brussels II bis") should be defined.
The Oberste Gerichtshof (AT) dismisses the appeal. According to Article 8(1) of the Brussels II bis Regulation, the courts of a Member State 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. Thus, in accordance with Recital (12) of the Preamble, international jurisdiction is primarily established "on the criterion of proximity". The term of "habitual residence" within the meaning of Brussels II bis Regulation must be autonomously interpreted in accordance with the aims and purposes of the Brussels II bis Regulation. According to the ruling of ECJ of 02.04.2009, C-523/07, the term "habitual residence" within the meaning of Article 8(1) Brussels II bis Regulation 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. Under these conditions it does not appear that the interpretation of Community law by the prior instances was indefensible.