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CYIL 7 ȍ2016Ȏ
THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE
a definition must not necessarily be legitimate for solving heterogeneous cases and
thus fulfil its conceptual role. Its descriptive adequacy is also a problem.
Mr. Hakenberg, a French national resident in France, has been acting in the
German market as a representative for French industrial undertakings. He was
canvassing business around Germany without having a fixed abode there. In 1964
Mr. Hakenberg applied to be made subject to the French general social security
scheme with retroactive effect. His application was refused for adual reason. The
first reason was that Mr. Hakenberg was not a wage-earner, whereas the second was
that he had not carried on his work in France.
The Court of Justice received a preliminary question of whether it is necessary
to regard as ‘permanent residence’ any place where a person habitually resides within
the frontiers of a Member State, even when habitual residence is not confined to
a fixed place and consists of business canvassing tours made by caravan or whether
habitual residence implies a certain degree of confinement to a given place and
whether, as a result, a worker only has a permanent residence in the Member State
in which he has a definite address to which he returns in the intervals between his
tours and in which the registered offices of the undertakings which employ him are
situated.
85
Mr. Hakenberg was working at least nine months a year outside of his country
of origin without having a fixed abode in the country where he canvassed business.
The character of his work was to move around the country without dwelling at one
place. He had no fixed abode. If he had lived, worked and dwelled at one place, he
would have been attached to such a place and its community, and the case would
have been simple with an easy legal solution. He lived in Germany in a caravan and
he was returning periodically to France for about three months in the year, in order
to make contact with the undertakings he represented. In Germany Mr. Hakenberg
has a post box at his disposal as well as a business reception service.
From an intertemporal point of view, Art. 3 of the General Convention between
France and the Federal Republic of Germany on Social Security applied to his
case. Further, Art. 1 (h) and Art. 12 and Art 13. of Council Regulation No 3/58
as amended by Regulation No 24/64 applied.
86
The latter entered into force
1 April 1964.
The leading principle for applicable law was the place of employment of a person:
lex loci laboris
.
87
This general principle was derogated by three normative exceptions.
In the case of occasional employment the law of habitual residence applied.
88
85
Judgment of the Court, 12 July 1973,
Angenieux v Willy Hakenberg
, case 13/73, p. 938.
86
Judgment of the Court, 5 December 1967,
Bestuur der Sociale Verzeringsbank v J. H. van der Vecht
, case
19/67, p. 349.
87
See Article 12 of Regulation No 3/58.
88
See Article 13 (a) of Regulation 3/58.