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CYIL 7 ȍ2016Ȏ
THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE
which he returns in the intervals between his tours.
94
The Court thus offered an
interpretation for idiosyncratic, itinerary situations. The intention of the Court was
to offer neither a descriptive nor a stipulated nor explicative definition. Its definition
of a permanent residence relying upon the constituent word ‘habitual residence’
depends on the normative context, social situation and emanates from experience.
The definition provided by the Court of Justice is pre-eminently ostensive.
The court used the term ‘centre’ for explication of the permanent residence and
attributed a fundamental role to it. Already several years before De Steiger and De
Winter had explained the concept of habitual residence in international private law
by means of this very term. They had added the term ‘life’ or ‘existence’. Contrary
to this, the Court joined the term ‘centre’ with the other terms of ‘permanent’ and
‘interest’. The term ‘permanent’ is connected with the ordinary meaning of the
term ‘habitual’. And, as Holbach writes, interest is the sole motivation of human
conduct.
95
In the sense of Holbach’s formula, interests definitely are not mere
motivational dispositions.
96
Interests are at the same time categories of both relation
and interaction. Interests refer to relations among individuals and to relations
among individual and particular objects or activities. Relations are thus developed
interactions of subject(s)-to-subject(s) and subject(s)-to-object(s) or activity(ies).
The concept of habitual residence used in Art. 1 (h) of Regulation No 3/58
first settled in social law like it did in German law.
97
The concept was specified by
the constituent of ‘habitually resides’. Following Regulation No 1408/71 satisfied
the need for general revision of its predecessor – Regulation No 3/58 on social
security for migrant workers.
98
This secondary formal source contained in Art. 1 (h)
a definition not relating to permanent residence but exclusively to the residence to
which it allocates a simple content:
‘Residence’ means habitual residence.
The terms used are of semantic equality, whereas the concept of habitual
residence is placed to be
definiens
.
In the
Swaddling
case the Court attributed a Community-wide meaning to
the term ‘residence’.
99
The Court could have signified that the singular content of
the concept should apply for all cases, not only to social security issues. However,
94
Judgement of the Court 12 July 1973,
Angenieux v Willy Hakenberg
, case 13/73, p. 951.
95
HOLBACH, Paul Heinrich Dietrich.
Systeme de la Nature Ou des Loix du Monde Physique & du Monde
Moral
. Londres: Nouvelle Édition, 1793, p. 312.
96
SILVIA, Paul J.
Exploring the Psychology of Interest
. Oxford: Oxford University Press, 2006, p. 13.
97
ANDERSON, KAREN M.
Social Policy in the European Union
. London: Palgrave, 2015, p. 1.
98
Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security
schemes to employed persons and their families moving within the Community. Official Journal L 149,
p. 2-50.
99
Judgement of the Court (fifth chamber) 25 February 1999
Robin Swaddling
v Adjudication Officer
,
C-90/97, p. 1099.