Višje sodišče v Ljubljani; 2019-12-16; IV Cp 1968/2019
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2019:IV.CP.1968.2019
Date: 2019-12-16
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82019SI1216(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerns the jurisdiction of Slovenian courts in proceedings on parental responsibility.
In 2019, the Slovenian father of two minor children (hereinafter ‘the plaintiff’) applied to the Court of First Instance for custody of the children and their care, as well as for the determination of contact between the children and their mother (hereinafter ‘the defendant’), and for the determination of child support. The plaintiff also applied for an interim measure to entrust the children to his care. In 2017, the children had been entrusted to the defendant, who subsequently moved with them to Germany, where they now live with her and her new partner.
The Court of First Instance invoked Article 8 of the new Brussels II Regulation (1), according to which ‘the courts of a Member State shall 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’. Having assessed the facts of the case, the Court of First Instance held that the children were habitually resident in Germany and declared that it lacked jurisdiction to hear the case.
The plaintiff appealed the decision, arguing that the children had not become integrated into social and family life in Germany, that both children were Slovenian citizens and that the younger child did not even speak German. The plaintiff also claimed that the defendant might agree to return the older son to Slovenia, as her new family in Germany had experienced social difficulties. The plaintiff also referred to the possibility of transferring jurisdiction under the new Brussels II Regulation.
The Court of Appeal upheld the reasoning of the Court of First Instance on Article 8 of the new Brussels II Regulation, confirming that the children’s habitual residence was the decisive factor in the case. As the Court of Justice of the European Union explained in Case C-523/07 (2), ‘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’. In the present case, as the children had been living in Germany continuously for two years and had moved there lawfully, the Court of Appeal concluded that the Court of First Instance’s findings regarding their habitual residence in Germany should be upheld.
As regards the transfer of the case, the Court of Appeal noted that Article 15 of the new Brussels II Regulation allows this only in cases where a court having jurisdiction transfers the case to a better placed court in another Member State. This does not apply vice versa; therefore, the Slovenian court, which lacked jurisdiction, could not hear the case on this ground.
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) Judgment of the Court of Justice of 2 April 2009, C-523/07, ECLI:EU:C:2009:225.