Interpretation of International Agreements on Social Security from the Perspective of ‘Relocation’, ‘Temporary Residence’ and ‘Permanent Residence’

Subject of the Article is the interesting judgment of the Czech Supreme Administrative Court as of 20 May 2010 dealing with the interpretation of international treaties on social security. The judgment is remarkable for the scope of resources of international (or Community) origin of which it takes account, at least for the purposes of comparison; it also concentrates on the difference between domicile and habitual residence, and the significance of the subjective and the objective element of the connection to a particular territory. By contrast to the prevailing practice in Czech courts, the judgment offers a detailed comparison with the domestic (national) laws of other countries. The judgment also repeatedly refers to a “centre of all living conditions”, or “centre of interests”, etc. In the circumstances of the present case, though, i.e. as concerns the general personal status of a natural person or in connection with the specific branch of social security, these concepts lack any qualified meaning or legal definition. They are therefore an expression of the general dislocation of a natural person’s connections to a place in a particular state in which the person intends to reside and establish all of his or her personal and professional connections. However, we must strictly distinguish between that concept and, for instance, the centre of the debtor’s main interests within the meaning of jurisdiction laws in insolvency proceedings with international elements in EU law, as introduced by Article 3 of Council Regulation (EC) No. 1346/2000, on insolvency proceedings. Th at is a sui generis concept introduced by said Regulation in so-called cross-border insolvency in EU law. One of the differences distinguishing the “centre of main interests” from the general definition of a natural person’s main living and other connections is, for instance, the fact that such concept, in terms of European insolvency law, applies to legal persons as well, takes special account of economic relations and accentuates (according to the existing case law) the way such economic relations are perceived and viewed by third parties, i.e. the debtor’s creditors. We have to point out that the logical structure, as well as the reasons for the decision, contributes to it being a very modern and highly professional decision, with balanced reasons. The reasons take account of both domestic resources and resources of international origin, which were very well chosen in their historical connotations. The court articulated a politically very careful, yet pertinent and fitting description of the correct approach to the interpretation of international treaties after the political and social changes in the countries of Central and Eastern Europe in the late 1980s and early 1990s, which resulted in radical changes both inside these countries and in the mutual relations between these countries. This international political and international legal reality was masterfully exposed by the court on the platform of the traditional foundations of the international law of treaties, as primarily expressed in the Vienna Convention on the Law of Treaties (1969). This decision definitely deserves attention, even international attention