How do we qualify primarily the concept of residence [628218]

How do we qualify primarily the concept of „residence ”
of the natural person in Romanian private international law?

Professor Nadia -Cerasela ANIȚEI1

Abstract
The provisions of Article 2570 of the Civil Code regulate two types of habitual
residences, namely: the habitual residence of the individual (paragraphs 1 and 2) and the
habitual residence of legal persons (paragraphs 3 and 4). The Romanian Authority must
use pursuant to Article 2570 of the Civil Code the Romanian meaning of t he concept of
“resid ence”. Therefore, in order to make the primary qualification of the concept of
“residence ” in Romanian private international law it is necessary to take into account the
scope of the concept of residen ce in Romanian domestic law. This article aims to study and
analyze the instrument of the institution of residence of the following legislation: We will
try to analyze in the first point which is the meaning of the notion of residence in Romania
of Romanian citizens, and in the second point we will study the m eaning of the notion of
residence in the case of foreigners who establish their residence in Romania. Article 88
Civil Code; Chapter IV (art.26 – 41) of the Emergency Ordinance no. 97/2005 on the
records, domicile, residence and identity documents of Romani an citizens republished
(2011); Government Decision no. 516/2009 amending Government Decision no. 839/2006
regarding the form and content IDs, the sticker on the book of their residence and pro perty.
Decision no. 516/2009; the provisions of Emergency Ordin ance no. 194/2002 on foreigners
in Romania republished (in 2011) and the provisions of Government Emergency Ordinance
no. 102/2005 on the free movement of citizens of member states of the European Union and
European Economic Area (republished in 2011) in o rder to derive the Romanian
qualification of the notion “residence of the individual”.

Keywords: the residence of the individual Romanian citizen, the residence of the
individual foreign citizen, the residence of the individual foreign citizen in Romania, the
residence of the individual EU citizen.

JEL Classification: K33

1. What do we mean by the notion of residence in Romanian private
international law?

Civil Code in Article 2570 with the marginal name “Determination and
proof of habitual residence ” states: “For the purposes of this book, the habitual
residence of the natural person is in the country where the person has his or her
principal residence, even if he has not fulfilled the legal formalities for
registration. The habitual residence of a nat ural person acting in the exercise of
his professional activity is the place where that person has his principal place of

1 Nadia -Cerasela Aniței – Faculty of Law, Social and Political Sciences, „Dunărea de Jos” University,
Galați, Romania, [anonimizat].

148 Volume 7, Issue 2, Decemb er 2017 Juridical Tribune

business. (paragraph 1) For the determination of the main housing, the personal
and professional circumstances which indicate durable links with that State or the
intention to establish such links shall be taken into account. (Paragraph 2)
Having regard the provisions of paragraph 1 and 2 of Article 2570 of the
Civil Code we can say that the habitual residence of the individual in Romani a is
the address in Romania where the respective individual (Romanian citizen, foreign
citizen or stateless person) has his main home and where he carries out mostly his
personal, social and professional activity.
The residence is a point of contact, for e xample, for:
– status of the individual (civil status, capacity and family relationships ).
Thus, for example Article 2589 paragraph (1), the first thesis of the Civil Code
states: “The general effects of marriage are subject to the law of the common
habitu al residence of the spouses, in the absence of the law of the common
citizenship of the spouses. ” From these provisions we observe that the general
effects of marriage are governed by the law of the common habitual residence and
in the absence of this law, by the law of common citizenship. Thus, the connecting
point is mainly the common habitual residence and, in the alternative, the common
citizenship;
The residence is a point of contact, for example, for:
– status of the individual (civil status, capacity and family relationships ).
Thus, for example Article 2589 paragraph (1), the first thesis of the Civil Code
states: “The general effects of marriage are subject to the law of the common
habitual residence of the spouses, and in the absence by the law of t he common
citizenship of the spouses. ” From these provisions we observe that the general
effects of marriage are governed by the law of common habitual residence and in
the absence of this law, by the law of common citizenship. Thus, the connecting
point i s mainly the common habitual residence and, in the alternative, the common
citizenship;
– the substantive conditions of legal acts, if the debtor of the characteristic
benefit is a natural person. Thus, according to Article 2638 of the Civil Code, the
substantive conditions of the unilateral legal act and of the contract are established
– in the absence of the elected law – by the law of the state with whic h that legal act
presents the closest links, considering that there are such links with the law of th e
state in which the debtor has, on the date of conclusion of the act, as the case may
be, the habitual residence, the trade fund or registered office;
– the s ubstantive terms of the contract of sale , the service contract, the
franchise contract, the distri bution contract, etc., i n the absence of the parties'
election of the law applicable to the respective contract, these are governed by the
law of the state where the seller has its habitual residence (in the case of the
contract o f sale). Thus, for example , Article 4 paragraph (1) letter (a) of Regulation
No. 593/2008 on the law applicable to contractual obligations (Rome I ) provides
that, in the absence of a law that the parties agree to apply to the sale / purchase
contract, it is subject to the law of th e state in which the seller has his habitual
residence;

Juridical Tribune Volume 7, Issue 2, December 2017 149

– responsibility for damage on personality. According to Article 2642
paragraph (1) of the Civil Code, the claims for damages based on a prejudice to
private life or personality, including through the media or any other public m eans
of information, are ruled, at the choice of the injured person, either by the law of
the country of his habitual residence; or by the law of the state in which the
damaging result has occurred; either by the law of the Stat e in which the author of
the damage has his habitual residence or registered office;
– inheritance . According to Article 2633 of the Civil Code “The inheritance
is subject to the law of the state on the territory of which the deceased had, at the
time of h is death, the habitual residence; ”
– competent jurisdiction in certain situations . Thus, according to Article 3
paragraph (1) letter (a) of Regulation (EC) no. 2201/2003 of November 27, 2003
concerning jurisdiction and the recognition and enforcement of ju dgments in
matrimonial matters and in matters of parental responsibility, repealing Regulation
(EC) (EC) No 1347/2000 as amended by Regulation (EC) Council Regulation (EC)
no. 2116/2004 of December 2, 2004 “Have jurisdiction in matters relating to
divorce, legal separation and marriage annulment the courts of the Member State:
(a) on the territory of which there is:
– the habitual residence of the spouses
– the last habitual residence of the spouses as one of them still lives there or
– the habitual residen ce of the defendant or
– in the case of a joint application, the habitual residence of one of the
spouses or
– the plaintiff's habitual residence if he/she has lived there for at least one
year immediately prior to the filing of the application; or
– the h abitual residence of the plaintiff if he/she resided there for at least six
months immediately prior to the filing of the application and if he is either a
national of that Member State or, in the case of the United Kingdom and Ireland,
he/she has his “domicile” in that place. ”
Habitual residence, just like domicile, refers to lex domicilii law system.

2. What d o we mean by the notion of “residence of the natural person
(individual) ” in Romanian law?

2.1. The notion of residence of Romanian citizens in Romania

Article 88 of the Civil Code defines the residence of the individual as “the
place where he has his secondary residence ”.
In Article 30 of the Emergency Ordinance no. 97/2005 on the registration,
domicile, residence and identity papers of the Roma nian citizens, republished in
2011, the residence is defined as “the address where the individual declares that he
has his secondary place of residence other than his or her domicile. ”
Article 26 (2) of the Emergency Ordinance no. 97/2005 republished in
2011 states that “Romanian citizens can have at the same time only one domicile

150 Volume 7, Issue 2, Decemb er 2017 Juridical Tribune

and / or one residence. If they have more homes, they can establish their domicile
or residence in any of them ”. So, Romanian citizens can only have one residence
in Romania.
According to Article 31 paragraph (1) of the Emergency Ordinance no.
97/2005 republished “The residence shall be entered in the identity document at the
request of the individual who lives more than 15 days at the address where he has
his secondary residence. ”
Studying Article 31 paragraph (1) of the Emergency Ordinance no.
97/2005 it would seem that the residence will have to be mandatorily entered in the
identity document at the request of the individual if he lives for more than 15 days
at that address. How ever, this term would be mandatory if the Emergency
Ordinance no. 97/2005 had not undergone some modification through the 2011
republication. Article 43 letter c) of the Emergency Ordinance no. 97/2005
stipulates that non -compliance with the provisions of Articles 25 and 36 shall
constitute a contravention and shall be sanctioned by a fine of 75 lei to 150 lei. It is
noted that, as the ordinance was republished, Article 43 letter c) sanctions with a
fine from RON 75 to RON 150 the person who hosts another p erson for an
uninterrupted period of more than 30 days, except for the situations provided by
Article 32 letter (a). From these provisions we find that the 15 -day period is not
mandatory, it is not mandatory for the registration of the residence at the req uest of
the individual as long as a person can accommodate another person for 30 days,
except for the situations provided by Article 32 letter (a), respectively the situation
in which the person lives at a different address than the domicile one, in the in terest
of the service or for tourist purposes.
Paragraph 2 of Article 30 of the old regulation of the ordinance stated that
“The indication of establishment of residence shall be granted for the requested
period, but not longer than one year, and shall be valid for as long as the person
actually resides at the address declared as a residence. Upon the expiration of this
term, the person may request the registration of a new mention of establishment of
residence. ” In the doctoral thesis “Patrimonial relation s between spouses in the
Romanian private international law ” we stated that “We do not understand why
the Romanian citizen must apply for the residence renewal visa every year, as long
as the person concerned has not changed his residence. ” At present, hav e now
found that the legislator abrogated this line in 2011 when the ordinance was
republished.
Therefore, corroborating the provisions of Article 88 of the Civil Code and
the provisions of Article 30 of the Emergency Ordinance no. 97/2005 republished,
we can define the Romanian residence of the Romanian citizens as follows: the
residence is the address in Romania where the Romanian citizens have their
secondary residence and where they live for a shorter period than the one spent at
the main dwelling.

Juridical Tribune Volume 7, Issue 2, December 2017 151

2.2. The notion of residence in case of foreigner who establish their
residence in Romania2

Next we will try to investigate the meaning of the notion of residence in
the case of foreigners who establish their residence in Romania. The regime of
foreigners in Romania is regulated by the Emergency Ordinance no. 194/2002 on
the regime of foreigners in Romania republished3.
Studying the Emergency Ordinance no. 194/2002 republished, we also find
that in the 2008 republishing there is no section and not even an art icle expressly
regulating the establishment of the foreigner's residence in Romania, as Article 76
regulates the residence of foreigners in Romania stating that “Foreigners holding a
permanent right of residence have the right to establish or change their domicile
on the territory of Romania under the same conditions as the Romanian citizens ”.
If a foreign national holding a right of permanent residence has the right to
establish or change his domicile on the territory of Romania under the same
conditions a s a Romanian citizen , we continue to consider that the emergency
ordinance does not establish special formalities in the matter of determining the
residence of the foreign citizen on the territory of Romania.
Article 3 (2) provides that foreigners who lega lly reside in Romania may
move freely and may establish their residence or, where appropriate, their domicile,
anywhere on the territory of Romania. From this paragraph it could be inferred that
the right of the foreigner to establish his residence in Roma nia would depend on
the lawfulness of his presence on the Romanian territory, namely on:
a. compliance with the provisions of: Article 6 paragraph (1) (conditions
for entering the territory of Romania), Article 11 (which limits the legal temporary
residenc e until the deadline established by the visa or by the residence permit or by
the residence book), Articles 50 -69 (conditions and procedure for extending the
right of temporary stay); compliance with the provisions of Article 13 paragraph
(2) stipulating t hat “The foreigner who changes his domicile or residence is
obliged, within 15 days from the date of his transfer to the new address, to appear
before the Romanian Territorial Office for Immigration, for being registered and
making the appropriate mentions on the identity document. ”
and of
b. failure to meet the requirements imposed by: Article 77 (Cases of
cancellation and revocation of the right of residence in Romania), Article 85
(Declaration as Undesirable) and Article 94 (Making the expulsion of the
foreigner).

2 N-C Anitei, What do we mean by the notion of “residence” by the notion of “residence” in the case
of foreigners who establish their “residence” in Romania? Article presented at International
Conference Legal and Administrative Challenges in Cross -Border Coo peration (LSCCC 2017) |
April 6th, 2017 | Cernivtsi, Ukraine, pp. 15 http://conferinta.info/wp -content/uploads/2017/03/
Program_LUM EN_RSACVP2017_Conference__associated -events.pdf (consulte on 15.10.2017),
published in „Journal of Legal Studies”, no. 1 -2/2017.
3 Republished in 2004 and in 2008.

152 Volume 7, Issue 2, Decemb er 2017 Juridical Tribune

According to Article 104 paragraph (6) of the Emergency Ordinance in
question, the tolerated foreigner is required to appear monthly or whenever he is
summoned to the territorial formation of the National Immigration Office which
has granted him tolerance and announce any change of residence. It follows from
this provision that a tolerated foreigner resides in the territory of our country.
Pursuant to the first paragraph of Article 102, tolerance of stay on the territory of
Romania is the permiss ion to remain on the territory of the country, granted by the
National Immigration Office , to foreigners who do not have the right of residence
and who, for objective reasons, do not leave the territory of Romania. Therefore,
the quality of tolerance impli es the lack of right to stay on Romanian territory.
Corroborating the provisions of Articles 102 paragraph (1) and 104
paragraph (6), we conclude that a foreigner without a right to stay in our country
(namely, not legally residing in Romania) may, however , have a Romanian
residence. Although we have shown in the mentioned paper that the provisions of
the Emergency Ordinance no. 194/2002 emphasize the false reasoning according to
which the legality of the presence of the foreigner in Romania is an indispens able
condition for the establishment of a Romanian residence, this falsity is maintained
in the republishing of the mentioned ordinance in 2008 because a foreigner with no
right of residence on the territory of our country (namely, who is not legally
resid ent in Romania) may, however, have a Romanian residence. Taking into
consideration that the Emergency Ordinance no. 194/2002, republished, does not
contain any special provisions that particularize the institution of the Romanian
residence of the foreigner , we consider that the Romanian legislature has left the
definition of this notion under the common law (Article 88 Civil Code, interpreted
per a contrario and Article 30 of the Emergency Ordinance no. 97/2005
republished) but also to the interpretation of the provisions of Article 76 of the
Emergency Ordinance no. 194/2002 republished. Consequently, the Romanian
residence of a foreigner, for the Romanian jurist must mean the address in Romania
where the foreign citizens have their secondary residence and w here they live for a
shorter period than the one spent at the main residence.
Taking into account the fact that the provision of Article 30 of the
Emergency Ordinance no. 97/2005 republished refers exclusively to Romanian
citizens, is it possible for a for eigner to have several Romanian residences?
According to the Romanian legislator, a foreigner can have only one residence in
Romania. Although there is no express provision to this effect, in the Emergency
Ordinance no. 194/2002, however, we can see the us e of the common noun
“residence ” only in singular, in the drafting of Article 11 paragraph (2), Article13
paragraph (2) and Article 104 paragraph (6) of the same normative act.

Juridical Tribune Volume 7, Issue 2, December 2017 153

2.3. Residence in the case of free movement on the territory of
Romania of th e citizens of the Member States of the European
Union, the European Economic Area and the citizens of the Swiss
Confederation

Government Emergency Ordinance no. 102/2005 on the free movement on
the territory of Romania of the citizens of the Member States of the European
Union and of the European Economic Area and of the citizens of the Swiss
Confederation republished4 in 2011 does not define the concept of residence of a
citizen of a Member State of the European Union, but in Article 2 paragraph (1)
section (4) defines the right of residence (the right of the European Union citizen to
stay and reside on the territory of Romania under the law) and at section 5 defines
the notion of resident (a citizen of the European Union or a member of his family
who exer cises their right to move and reside freely within the territory of Romania
under the law).
From Chapter III “The conditions for the exercise of the right of residence
on the territory of Romania by the citizens of the European Union as well as by the
memb ers of their family ” we find that the residence can be of three kinds:
a) up to 3 months without any additional condition (Article 12);
b) more than 3 months, but not more than 5 years (to be obtained by a
registration certificate or a residence card follo wing the fulfilment of the conditions
laid down in Article 13);
c) permanent ‒ conditional law (Article 22) which is granted by the
issuance of a permanent residence card. Permanent residence requires domicile in
Romania.
It follows from the above that a c itizen of the European Union has the right
to move freely and to reside on the territory of Romania for three months without
any other formality. This involves acquiring a residence in the sense of a secondary
residence for a determined period of time. The refore, in the view of the legislator,
the acquisition of a Romanian residence by a citizen of the European Union should
not be conditional on the existence of a registration certificate or of the residence
card (the latter for a family member who does not have the nationality of a Member
State of the European Union).
Is it possible for a citizen of a Member State of the European Union and his
non-national family members to have more than one Romanian residence? In the
opinion of the Romanian legislator, th e answer is negative . Although there is no
express provision to this effect in the Emergency Ordinance no. 102/2005 with
subsequent modifications and completions, we can remark, however, the use of the
common noun “residence ” only in singular, in the draft ing of Article 3 letter b)
which establishes the freedom to travel and to establish the residence or, where
appropriate, the domicile anywhere on the territory of Romania.

4 Official Gazette, Part I no. 774 of November 2, 2011 .

154 Volume 7, Issue 2, Decemb er 2017 Juridical Tribune

By summarizing the definitions of the Romanian residence and of the
residence abroad , both belonging to the foreigner, a citizen of the European Union
or not, we obtain the following Romanian qualification of the general notion of
“the residence of the foreigner ”: a secondary and temporary residence of the
foreigner which, in case of its placing on the Romanian territory, is the only one of
its kind there.
By comparing the definitions of the residence of the Romanian citizen and
of the residence of the foreigner , we infer the Romanian qualification of the
“natural person's residence ” conce pt: the secondary and temporary housing of the
individual, a housing which, when found on the territory of Romania, is the only
one of its kind where there is a shorter time than the one spent at the main housing .
In conclusion, under Romanian law, the res idence of the natural person
means the address in Romania where the respective individual (Romanian citizen,
foreign citizen or stateless person) has his secondary residence and where he lives
for a shorter period than the one spent at the main housing.

2.4. Which are the legal provisions in the various European
regulations on “habitual residence ”?

At the level of the European Union, various regulations define or explain
the notion of “habitual residence .” In this regard, we mention:
• Article 2 paragrap h (1) (a) of Regulation (EC) No. 862/2007 on
Community statistics on migration and international protection and repealing
Regulation (EEC) 311/76 on the compilation of statistics on foreign worker5 s
defines “habitual residence ” as “the place where a perso n normally spends the
daily rest period, without taking into account temporary absence for recreation,
holidays, visits to friends and relatives, business, medical treatment or religious
pilgrimage, or, in the absence of information, the legal or registere d place of
residence .” From this article, we note that habitual residence is the legal or
registered place where the person spends most of his daily time, except for the
following temporary absences: recreation, holidays, visits to friends and relatives,
business, medical treatment or religious pilgrimage.
• Article (2) letter (d) of Regulation (EC) no. 763/2008 of the European
Parliament and of the Council of July 9, 2008 on population and housing censuses6
provides that “habitual residence ” means the plac e where a person normally
spends his daily rest period, independent of the temporary absence for recreation,
holidays, visits to friends and relatives, business, medical treatment or religious
pilgrimages. “The habitual residence in the geographical area c oncerned shall be
considered to be specific only to persons who:

5 of the European Parliament and o f the Council of July 17, 2007 published in Official Gazette no. L
199 of 31 -07-2007 , pp. 23 -29.
6 of the European Parliament and of the Council of July 9, 2008 published in the Official Gazette no.
L 218 of August 13, 2008 , pp. 14 -20.

Juridical Tribune Volume 7, Issue 2, December 2017 155

(i) lived in their usual place of residence for an uninterrupted period of at
least twelve months before the reference date; or
(ii) have arrived at their place of habitual residence no more than twelve
months before the reference date, with the intention of remaining for at least one
year. ”
If the circumstances described in (i) and (ii) cannot be determined,
“habitual residence ” means the place of the legal or registered domicile . “From
the p rovisions of this article, we observe two definitions according to the
“reference date ”, two definitions on the “habitual residence”, thus in the first
meaning “habitual residence' is defined as the place where a person normally
spends a daily rest period of at least twelve months before the reference date, with
the exception of the following situations of temporary absence aimed at recreation,
holiday spending, visits to friends and relatives, business travel, medical treatment
or travel to religious pilgr images; in the second meaning, “habitual residence ” is
defined as the place where a person arrived at the place of habitual residence no
more than twelve months before the reference date normally spends the daily rest
period, uninterrupted with the intenti on to stay for at least one year, except for the
following temporary absence situations, which are aimed at recreation, holiday
spending, visits to friends and relatives, business travel, medical treatment or
travel to religious pilgrimages .
• The Annex7 to Reg ulation (EC) No 1201/2009 of November 30, 2009
implem enting Council Regulation (EC) n o 763/2008 of the European Parliament
and of the Council of June 9, 2008 on population and housing census as regards
technical specifications for the topic: “Place of habitual residence ” makes a
number of specifications listing the exceptional situations in which certain
categories of persons are present in that annex, which Member States must take
into account when it comes to 'habitual residence' as defined in Articl e 2 letter (d)
of Regulation (EC) n o. 763/2008. These special situations are:
a) “Where a person regularly lives in more than one residence during the
year, the residence where he spends most of the year is considered as his habitual
place of residence, wh ether or not elsewhere in the country or abroad. However, a
person who works outside the place of residence during the week and who returns
to his family home during the weekend considers family home as his usual place of
residence, regardless of where his / her place of work is elsewhere country or
abroad .” It should be noted that where a person has more than one habitual
residence, the place where the person spends most of the year, regardless of
whether he is elsewhere in the country or abroad, except in the case in which the
person works outside the place of residence during the week and who returns to the
family home at the weekend, where family home is considered to be his habitual
place of residence regardless of the location of the place in another l ocality in the
country or abroad ;

7 Published in JO n r. L 329 of 15/12/2009 pp. 29 -68.

156 Volume 7, Issue 2, Decemb er 2017 Juridical Tribune

b) “Elementary and secondary school students living outside their domicile
during the schooling period consider their family housing as their habitual place of
residence, regardless of whether they continue their studies e lsewhere in the
country or abroad. ” It is noted that habitual residence of the primary and
secondary school student is the family housing even if they are studying elsewhere
in the country or abroad.
c) “Students in tertiary education who live outside thei r domicile during a
period of study in a higher education institution or university, consider the place
they occupy during the academic year as their habitual place of residence,
regardless whether we talk about an institution (for example, a boarding scho ol) or
a private residence and regardless of whether they continue their studies elsewhere
in the country or abroad. Exceptionally, when stud ying in the country, their
habitual place of residence can be considered the family housing .” So the habitual
resid ence of the tertia ry education student is the housing he occupies during the
academic year regardless of whether he continues his studies in another locality in
the country or abroad except in exceptio nal situations where family housing can be
a habitual residence if studying in the country.
d) “An institution is considered as the habitual residence of all those who,
at the time of the census, have lived or are likely to live for 12 months in this
place. ” So the habitual residence of a person may be the ins titution in which at the
time of census, that person has lived or is likely to live for 12 months.
e) “The general rule as to the place where a person spends his daily rest
period applies to persons who perform their compulsory military service and to
memb ers of the armed forces living in military barracks or camps. ” It is noted that
the habitual residence of persons who carry out the compulsory military service
and members of the armed forces living in barracks or military camps shall be the
place where th at person normally spends the daily rest period, except for the
following situ ations of temporary absence aimed at recreation, holiday , visits to
friends and relatives, business travel, medical treatment, or travel to religious
pilgrimages.
f) “The place o f the census is considered as the place of habitual residence
for homeless, nomadic, vagabond people and for whom there is no notion of
habitual residence .” We find that the habitual residence for homeless, nomadic,
vagabond people and for persons for whom there is no notion of “habitual
residence ” is the place where the census is carried out.
g) “A child who resides alternately in two places of residence (for
example, if his parents are divorced) must consider the place where he spends most
of his time as his habitual place of residence. If he spends an equal period of time
to each of his parents, the place of habitual residence is the place where the child
spends the night of the census ”. We note that the habitual residence of a person
who lives alternativ ely in two places of residence for example, (if his parents are
divorced) is where he spends most of his time, unless the child has a period of time
equal to each parent when it is considered that the place of habitual residence is the
place where the chil d spends the census night.

Juridical Tribune Volume 7, Issue 2, December 2017 157

• In English law „Court of Appeal (England & Wales) (Civil Division) —
United Kingdom) „ Case C -497/10),8 the notion of 'habitual residence', as is
apparent from Articles 8 and 10 of Regulation (EC) no. 2201/2003 of the Council
of November 27, 2003 concerning jurisdiction and the recognition and
enforcement of court judgments in matrimonial matters and in the matters of
parental responsibility, repealing Regulation (EC) no. 1347/2000 “must be
interpreted as meaning that the residen ce corresponds to a place expressing a
certain integration of the child into a social and family environment. To that end,
when the situation of a child who lives only for a few days with his mother in a
Member State other than that in which he has his hab itual residence , in which he
has been displaced , in particular, the duration, the regularity, the conditions and
the reasons for the stay on the territory of that Member State and of the removal of
the mother in that State must be considered and, on the ot her, the age of the child,
the geographic and family backgrounds of the mother , as well as the family and
social relationships that she and her child have in the same Member State. It is for
the national court competence to determine the child's habitual residence, taking
into account all the factual circumstances of each individual case. If the
application of the above criteria leads, in the main proceedings, to the conclusion
that the habi tual residence of the child can not be established, the determinati on of
the competent court should be made on
• the criterion of “child's presence ” within the meaning of Article 13 of the
Regulation. ”

3. Conclusions

By corroborating the provisions of Article 88 of the Civil Code and the
provisions of Article 30 of the Emergency Ordinance no. 97/2005 republished, we
can define the Romanian residence of the Romanian citizens as follows: the
residence is the address in Romania where the Romanian citizens have their

8 published in Official Gazette C 328, 4.12.2010. The case is available at: www.eur -lex.europa.eu.
[Judicial cooperation in civil matters – Regulation (EC) 2201/2003 – Matrimonial matters and
parental responsibility – Child of unmarried parents – Concept of 'habitual residence' of a young
child – Concept of 'custody' ) Parties to the main proceedings : Plaintiff Barbara Mercredi Defendant
Richard Chaffe. The object of the action. Request for a preliminary ruling – Court of Ap peal
(England & Wales) (Civil Division) – Interpretation of Articles 8 and 10 of Council Regulation
(EC) no 2201/2003 of the Council from November 27, 2003 concerning jurisdiction and the
recognition, in matters of parental responsibility, of Council Regul ation (EC) no. 1347/2000 (OG L
338, p. 1, special edition, 19/vol. 06, p. 183) Object of the action – Concept o f habitual residence –
Baby born in the United Kingdom, having a British father and a French mother and having the
nationality of the mother, the parents being not married – A child moved by the mother to Réunion –
Legal displacement at that time because t hen the mother was the holder of parental responsibility
for the child – Subsequent claims made by father asking for parental responsibility, alternative
residence and right to visits filed with the British courts – High Court order ruling the return of th e
child to the United Kingdom – Order challenged by the mother on the ground that the child's
habitual residence was no longer in the United Kingdom at the time the court was seised.

158 Volume 7, Issue 2, Decemb er 2017 Juridical Tribune

secondary residence and where they live for a shorter peri od than the one spent at
the main dwelling.
In conclusion, the habitual residence of a natural person is either the
address in Romania, or the address in any EU member state, or the address in the
Swiss Confederation, where the respective individual (Roman ian citizen, citizen of
the European Union or the Confederation, foreign or stateless) that person has his
principal residence and where he carries out for the most part all his personal,
social and professional activity in compliance with certain terms, c onditions
established by the legislation in force and taking into account the special situations
provided for in these regulations.
Through the residence of a foreigner in Romania, the Romanian jurist must
understand the address in Romania where the foreig n citizens have their secondary
residence and where they live for a shorter period than the one spent at the main
dwelling.
In conclusion, we mention that the definitions of residence are a precious
auxiliary means in the process of primary qualification o f the notion of residence as
a point of connection for various juridical relations born abroad but unknown to the
Romanian law system. Through these notions, the Romanian authority will try to
classify these legal relationships according to their residence and then to determine
the applicable material law.
So, the scope of the notion of residence in private international law is much
broader. Thus, the Romanian authorities have the freedom to recognize or not as a
point of connection those situations which d o not present the fundamental features
of the residence established by Romanian law. The same conclusion is reached by
the remark that the notions used in the context of conflict of rules become, through
primary qualification, adaptations of the concepts u sed in domestic law.

Bibliography

1. N-C Anitei, What do we mean by the notion of “residence” by the notion of
“residence” in the case of foreigners who establish their “residence” in Romania?
Article presented at International Conference Legal and Adminis trative Challenges in
Cross -Border Cooperation (LSCCC 2017) | April 6th, 2017 | Cernivtsi, Ukraine, pp.
15, http://conferinta.info /wp-content/uploads/2017/03/ Program_LUMEN_
RSACVP2017_Conference__associated -events.pdf (consulte on 15.10.2017).
2. Jurisprudence „Court of Appeal (England&Wales) (Civil Division) ‒ United
Kingdom) „ Case C-497/10).
3. Romanian Civil Code .
4. Government Emergency Ordinance no. 194/2002 on foreigners i n Romania
republished (in 2011).
5. Government Emergency Ordinance no. 102/2005 on the free movement of citizens of
member states of the Euro pean Union and European Economic Area (republished in
2011) in order to derive the Romanian qualification of the notion “residence of the
individual .

Juridical Tribune Volume 7, Issue 2, December 2017 159

6. Council Regulation (EC) no. 862/2007 on Community statistics on migration and
international protection and repealing Regulation (EEC) 311/76 concerning the
production of statistics on foreign workers .
7. Council Regulation (EC) no. 2201/2003 of November 27, 2003 concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial matters
and in matters of parental responsibility, repealing Regulation (EC) no. 1347/2000.
8. Annex to Regulation (EC) No 1201/2009 of November 30, 2009 implementing Council
Regulation (EC) no. 763/2008 of the European Par liament and of the Council of July
9, 2008 on the Population and Housing Census.
9. Council Regulation (EC) no. 763/2008 of the European Pa rliament and of the Council
of July 9, 2008 on the Population and Housing Census .
10. Council Regulation (EC) no. 862/2007 on Community statistics on migration and
internatio nal protection and repealing Regulation (EEC) no. 311/76 on the
compilation of statistics on foreign workers.