Nejvyšší soud, usnesení ze dne 20/04/2006
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2006:30.CDO.2855.2005.1
Date: 2006-04-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Judicial cooperation in civil matters
Concepts: Judicial cooperation in civil matters
Origin: Czechia

82006CZ0420(01)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
A Slovak mother moved with her minor son to her parents' house in the Czech Republic in December 2004. On 4.2.2005, the father of her son, a Slovak national living in Slovakia, filed a motion with the Okresní soud of Karlovy Vary (CZ) for provisional measures on visitation with the son. The first instance court accepted jurisdiction based on § 39 (3) of the Czech Private International Law Act, but however did not see an urgent need to issue a provisional order and dismissed the father's application. Upon the father's appeal
the Krajský soud of Plzeň (CZ) reversed the lower court's decision and halted the proceedings, stating that according to Article 3(1) of Regulation 1347/2000 "Brussels II", which was applicable, Czech courts did not have jurisdiction. Pursuant to Article 12(4) courts of another Member State can take provisional measures in urgent cases. However, the condition of urgency was not fulfilled in this case.
The father appealed further to the Nejvyšší soud (CZ), which confirms as correct the application of Brussels II Regulation, which was in force with some exceptions until 28.2.2005. It also confirms that Article 12 is to be applied in urgent cases only, and states in agreement with the appeal court that the situation does not require immediate measures. According to the Nejvyšší soud the fulfilment of the conditions for taking provisional measures available under the Czech law cannot be deduced from the mere fact that the father filed his motion for provisional measures with a court in the Czech Republic that has no jurisdiction, despite the fact that nothing prevented him from filing the motion with a
Slovak court. Regarding the objection of the father that the jurisdiction of Czech courts is based on Article 5 of the Hague Convention on Protection of Children of 1996, it states further that pursuant to Article 37 Brussels II Regulation, the Regulation takes precedence over the Hague Convention. The Nejvyšší soud dismisses the appeal.