Nejvyšší soud ČR; 2022-12-22; 24 Cdo 3399/2020
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2021:24.CDO.3399.2020.1
Date: 2021-12-22
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82021CZ1222(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of international jurisdiction in parental responsibility addressed to the Nejvyšší soud (hereinafter ‘the Supreme Court’).
A father of a minor child (hereinafter ‘the plaintiff’) sought before the Okresní soud Praha – východ (hereinafter ‘the Court of First Instance’) a change in the conditions of custody of a child after a divorce. Subsequently, the child’s mother (hereinafter ‘the defendant’) requested the court to increase the child’s maintenance.
The Court of First Instance invoked Article 8(1) 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’. When the application was made, the child lived in Germany. The court declared a lack of jurisdiction to hear the case and terminated the proceedings.
Following the plaintiff’s appeal, the Krajský soud v Praze (hereinafter ‘the Court of Appeal’) upheld the first instance conclusion. The Court of Appeal confirmed the correct application of the Regulation. Also, it referred to the previous agreement of the parents that the habitual residence of a child after the divorce would be in Germany, which excludes the jurisdiction of the Czech courts.
The plaintiff filed a cassation appeal to the Supreme Court alleging an incorrect assessment of the child’s habitual residence. The plaintiff claimed that the child is a Czech national, and two years before the application was made, the child lived in Ukraine, where it also attended school. The child had no close connection to Germany at the point of the proceedings.
The Supreme Court confirmed that the crucial issue is the assessment of the habitual residence of the child in compliance with Article 8(1) of the new Brussels II Regulation. It recalled that the meaning and scope of the concept of habitual residence was already thoroughly interpreted by the Court of Justice of the European Union (CJEU), e.g. in Cases C-497/10 (2) and C-376/14 (3). The grounds of jurisdiction must be shaped in the light of the best interests of the child, in particular, on the criterion of proximity. The ‘habitual residence’ is then established by the national court, taking account of all the circumstances of fact specific to each individual case.
However, the Supreme Court held that the findings of fact made in the lower instances could not be challenged via cassation appeal. The Supreme Court is bound by them and cannot review them. The cassation appeal may be brought only on the grounds of error in law. In the present case, the lower courts thoroughly assessed the habitual residence, considering previous case law of the Supreme Court and CJEU. The fact that the plaintiff takes a different view on the assessment of the facts is not sufficient for the admissibility of the cassation appeal.
Under these circumstances, the Supreme Court dismissed the cassation appeal as inadmissible.
(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 22 December 2010, Barbara Mercredi v Richard Chaffe, C-497/10 PPU, ECLI:EU:C:2010:829.
(3) Judgment of the Court of Justice of 9 October 2014, C v M., C‑376/14 PPU, ECLI:EU:C:2014:2268.