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126
DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
However, Mr. Hakenberg was not occasionally employed in Germany. A second
normative exception applied to workers with transport undertakings, and a third
applied to assimilated workers lying astride the common frontier and to wage-
earners. None of the exceptions of
lex loci laboris
principle were relevant to his case.
Two possibilities of responses to the posed question were at stake. The permanent
residence of Mr. Hakenberg is in the country in which he stays longest but has
no fixed abode, or in the country in which he has a definite permanent address
to which he returns in the intervals between his tours.
89
The questions involved
a sub-question of whether permanent residence requires a degree of permanence
in a given place.
90
The Court of Justice was utterly aware that residence is a purely
factual concept which depends on the
de facto
presence of the person concerned in
a certain place.
91
a concept of domicile could not have been applied as it is of a legal
nature and has two conceptual components which must be examined: factum
and
animus
. Above all, the Court of Justice took into consideration the fact of
a fixed permanent address or registration of undertakings which employed him.
Possession of a permanent address was a stabilizing factor. Pursuant to Art. 13 (1) (c)
(first section), the Court also observed other facts than those connected with work
activities.
The Court stated, with reference to interpretation of the term ‘habitual’, that the
concept used in Art. 1 (h) of Regulation No 3/58 is not able to help the objective of
a unique conceptual role which is to determine the permanent residence of a person.
The meaning of the concept did not cover the situation of a person canvassing his
business and being permanently on the road.
92
The Court intentionally ignored
the nominal definition of the term ‘habit’. Such a nominal definition, explained in
dictionaries, should primarily serve the purpose of understanding. The Court did not
even set for its interpretational goal that of finding out how the crucial term is ordinarily
used. The term ‘habitual’ designates a certain level of continuousness in relation to
the residence even if it does not require uninterrupted stay. On the other hand, the
meaning of the concept excludes occasional, short-term or temporary residence.
93
The Court finally explained its understanding of the concept of permanent
residence in the context of Art 13. (1) (c) and the definition included in Art. 1 (h)
when a person conducts itinerant business activities. Permanent residence is a place
in which the worker has established the permanent centre of his interests and to
89
Judgement of the Court, 12 July 1973
Angenieux v Willy Hakenberg
, case 13/73, p. 944.
90
Ibid
., pp. 949-950.
91
Ibid
., p. 941.
92
Ibid
., p. 951: “To this criterion, the definition in Article 1 (h) adds that of the ‚habitual‘ nature of the
residence, from which it is apparent that it is scarcely appropriate to take into consideration, for the
purpose of determining permanent residence, itinerant activities for the purpose of canvassing business
which are by their nature unstable.”
93
CLIVE, Eric M. The Concept of Habitual Residence.
The Juridical Review
, 1997, Part 3, p. 139.