Višje sodišče v Ljubljani; 2022-11-22; I Cp 1504/2022
Decision by national courts in the field of European Union law — ECLI:SI:VSLJ:2022:I.CP.1504.2022
Date: 2022-11-22
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82022SI1122(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’), concerned the determination of jurisdiction in proceedings for placing an adult under guardianship, and the interpretation of the concept of permanent residence.
The mother (hereinafter ‘the plaintiff’) sought an appointment of a guardian for her 19-year-old daughter, who suffers from Dravet syndrome, a severe developmental disorder requiring constant supervision. The plaintiff and her husband are both employed in Slovenia, where the daughter has been enrolled in a special education programme at Centre X. The family has only temporary residence in Slovenia, as under Slovenian law, permanent residence may be granted to foreign citizens only after five years of continuous temporary residence. After the daughter reached the age of majority, the family encountered serious difficulties in arranging matters such as medical treatment, health insurance, and obtaining a passport, which prevented the family from functioning normally.
The Court of First Instance, relying on Article 48(3) of the ZMZPP (1), declared that it lacked jurisdiction, holding that the daughter is an Irish citizen without registered permanent residence in Slovenia.
The plaintiff appealed, alleging procedural irregularities and incorrect application of substantive law. The Court of Appeal agreed that the case was not governed by instruments of European Union law, such as the new Brussels II Regulation (2), and that the issue must therefore be assessed under national law. However, it found that the Court of First Instance had misapplied the ZMZPP.
Under Article 86 of the ZMZPP, Slovenian authorities may adopt urgent provisional measures to protect the personality, rights and interests of a foreign citizen present in Slovenia (paragraph 1), or to take measures in guardianship matters concerning a foreign citizen who has permanent residence in Slovenia (paragraph 2). The factual circumstances of the present case warranted the application of this provision. The Court of Appeal held that the notion of permanent residence within the meaning of Article 86(2) of the ZMZPP must be interpreted more broadly and not equated with registered permanent residence under administrative law. The decisive question is whether the individual’s centre of vital interests lies in Slovenia.
In this respect, the Court of Appeal considered that, in the context of guardianship, the concept of permanent residence should be understood in a manner closer to the concept of habitual residence, as developed in the case-law of the Court of Justice of the European Union on Article 8 of the new Brussels II Regulation. In addition to physical presence in a Member State, factors such as the duration, regularity and conditions of stay, the reasons for living there and the permanence of social and family ties must be taken into account to determine whether the presence is not merely temporary or occasional. Given the plaintiff’s family situation, the daughter’s integration in the Slovenian social and educational environment and the need to ensure the protection of her rights and interests, the Court of Appeal concluded that the Court of First Instance had interpreted the concept of permanent residence too narrowly.
It therefore upheld the appeal, annulled the contested decision and remitted the case to the Court of First Instance for a new decision.
(1) Zakon o mednarodnem zasebnem pravu in postopku (Private International Law and Procedure Act).
(2) 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.