Proceedings brought by HR.
Date: 2018-06-28
32


In that regard, it is sufficient to point out that, in the context of the procedure provided for in Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, the latter is empowered only to give rulings on the interpretation or the validity of an EU law provision on the basis of the facts which the referring court puts before it. It is for the referring court both to establish and to assess the facts of the case (see, to that effect, judgments of 3 September 2015, Costea, C‑110/14, EU:C:2015:538, paragraph 13 and the case-law cited, and of 21 July 2016, Argos Supply Trading, C‑4/15, EU:C:2016:580, paragraph 29 and the case-law cited).
35


In that regard, it should be borne in mind that, in the context of cooperation between the Court and the national courts, established by Article 267 TFEU, it is for the national courts alone to assess, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court (judgment of 14 March 2013, Allianz Hungária Biztositó and Others, C‑32/11, EU:C:2013:160, paragraph 19 and the case-law cited).
40


Given that that regulation does not provide any definition of the concept of the child’s place of ‘habitual residence’ and makes no reference to the law of the Member States in that regard, the Court has repeatedly held that the concept is an autonomous one of EU law, which has to be interpreted in the light of the context of the provisions referring to that concept and the objectives of Regulation No 2201/2003, in particular that which is apparent from recital 12 thereof, according to which the grounds of jurisdiction which it establishes are shaped in the light of the best interests of the child, in particular on the criterion of proximity (judgments of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraphs 31, 34 and 35; of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraphs 44 to 46; of 9 October 2014, C, C‑376/14 PPU, EU:C:2014:2268, paragraph 50; and of 8 June 2017, OL, C‑111/17 PPU, EU:C:2017:436, paragraph 40).
41


According to case-law, the child’s place of habitual residence must be established on the basis of all the circumstances specific to each individual case. In addition to the physical presence of the child in the territory of a Member State, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that it reflects some degree of integration of the child into a social and family environment (see, to that effect, judgments of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraphs 37 and 38; of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraphs 44 and 47 to 49; and of 8 June 2017, OL, C‑111/17 PPU, EU:C:2017:436, paragraphs 42 and 43).
43


In that context, it is necessary, in general, to take into consideration factors such as the duration, regularity, conditions and reasons for the child’s stay in the territory of the different Member States concerned, the place and conditions of the child’s attendance at school, and the family and social relationships of the child in those Member States (see, to that effect, judgment of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraph 39).
44


Furthermore, where the child is not of school age, a fortiori where the child is an infant, the circumstances of the reference person(s) with whom that child lives, by whom the child is in fact looked after and taken care of on a daily basis — as a general rule, its parents, — are particularly important for determining the place which is the centre of that child’s life. The Court has observed that the environment of such a child is essentially a family environment, determined by that person or those persons, and that that child necessarily shares the social and family environment of the circle of people on whom he or she is dependent (see, to that effect, judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraphs 53 to 55).
45


Accordingly, in a situation where such an infant lives with its parents on a daily basis, it is necessary, in particular, to determine the place where the parents are permanently present and are integrated into a social and family environment. In that regard, it is necessary to take into consideration factors such as the duration, regularity, conditions and reasons for their stay in the territory of the different Member States concerned, and the family and social relationships maintained by them and by the child in those Member States (see, to that effect, judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraphs 55 and 56).
46


Lastly, the intention of the parents to settle with the child in a given Member State, where that intention is manifested by tangible steps, may also be taken into account in order to determine the child’s place of habitual residence (see, to that effect, judgments of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraph 40; of 9 October 2014, C, C‑376/14 PPU, EU:C:2014:2268, paragraph 52; and of 8 June 2017, OL, C‑111/17 PPU, EU:C:2017:436, paragraph 46).
53


It is true that, as HR and the Polish Government have emphasised in their observations, the Court ruled, in its judgment of 22 December 2010, Mercredi (C‑497/10 PPU, EU:C:2010:829, paragraph 55), that the geographic and family origins of the parent who has custody of the child may become relevant for determining the integration of that parent and, by extension, the integration of the child, into a given social and family environment.
57


In addition, regarding a child’s cultural ties with its parents’ Member State of origin, it is true that they may point to a certain degree of closeness between that child and the Member State in question, corresponding, in essence, to a bond of nationality. The child’s linguistic knowledge and nationality may also, where appropriate, be an indicator of its place of habitual residence (see, to that effect, judgment of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraph 39).
59


That choice proceeds from a particular view of the best interests of the child. The EU legislature considers that the courts geographically closest to the child’s place of habitual residence are generally the best placed to assess the measures to be taken in the interests of that child (see, to that effect, judgments of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraph 36; of 15 July 2010, Purrucker, C‑256/09, EU:C:2010:437, paragraph 91; and of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraphs 51 and 52).
60


Therefore, when interpreting the concept of the child’s place of ‘habitual residence’ for the purpose of Article 8(1) of Regulation No 2201/2003, the child’s cultural ties or its nationality cannot be given greater weight at the expense of objective geographical considerations without disregarding the EU legislature’s intention.
64


Second and in any event, as the determination of the child’s place of habitual residence for the purpose of Regulation No 2201/2003 is essentially based on objective circumstances, the intention of the parents is not, in principle, decisive in itself in that regard. It is merely, where appropriate, an indicator capable of complementing a body of other consistent evidence (see, to that effect, judgment of 8 June 2017, OL, C‑111/17 PPU, EU:C:2017:436, paragraphs 47 and 51).