Višje sodišče v Kopru; 2010-02-24; Cp 141/2010
Decision by national courts in the field of European Union law — ECLI:SI:VSK:2010:Cp.141.10
Date: 2010-02-24
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82010SI0224(51)_ENG_SUMJURE
JURE summary
JURE summary
In divorce proceedings, before the Okrožno sodišče v Kopru (hereinafter ‘the Court of First Instance’) the defendant raised an objection, alleging the lack of jurisdiction of the Slovenian courts, arguing that the plaintiff lives in Switzerland, where he also runs a dental practice six days a week. The plaintiff provided a certificate of previous permanent residence in Slovenia and alleged that the defendant was still living there. The Court of First Instance cited Article 3(1)(a) of the new Brussels II Regulation (1), according to which ‘in matter relating to divorce … jurisdiction shall lie with the courts of the Member State in whose territory the spouses are habitually resident or … the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made’. The facts submitted by the defendant were not considered and the objection was rejected.
Based on defendant’s appeal, the Višje sodišče v Kopru (hereinafter ‘the Court of Appeal’) declared that the Court of First Instance incorrectly interpreted the new Brussels II Regulation and fundamentally violated procedural rules by omitting the evidence submitted by the defendant without any explanation.
The Court of Appeal assessed the concept of ‘habitual residence’ in relation to a record in the permanent residence register. Citing the case law of the Court of Justice of the European Union, the Court of Appeal held that the certificate of permanent residence cannot be regarded as a proof of plaintiff's habitual residence in Slovenia. Especially not in circumstances where the defendant has presented clear evidence that the plaintiff habitually resides in a different State.
The Court of Appeal annulled the first instance decision and referred the case back to the Court of First Instance for a new hearing.
(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.