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DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
the last paragraph shows that the Court could have most probably been misled
by the concept of domicile, as it points to
factum
and
animus
. Habitual residence
presupposes not only an intention to reside there but also completion of an appreciable
period of residence there.
100
As a result the Court erases the difference between the
factual and legal concept and their contents.
The definition of residence was also inserted into Regulation No 883/2004 of
29 April 2004 on the coordination of social security systems. As in the predeceasing
regulation, the definition provision distinguishes between residence and stay. It
takes the same approach towards definition of residence as the one taken towards
the concept of permanent residence in Regulation No 3/58.
‘Residence’ means the place where a person habitually resides.
The tax law of European communities defined the notion of normal residence in
Art. 7 (1) of Council Directive 83/182/EEC.
101
The definition specifies the residence
in a stipulated way overusing synonyms such as ‘normal’ and ‘usually’. The definition
differentiates occupational and personal ties. In the
Ryborg
case, the Court of Justice
applied an ostensive definition of permanent residence to explain the concept of
normal residence:
102
Normal residence must, according to consistent decisions of the Court in other
spheres of Community law, be regarded as the place where a person has established
his permanent centre of interests…
100
Ibid
., p. 1101: “Article 10a of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application
of social security schemes to employed persons, to self-employed persons and to members of their families
moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of
2 June 1983, as amended by Council Regulation (EEC) No 1247/92 of 30 April 1992, read together with
Article 1(h) thereof, precludes the Member State of origin — in the case of a person who has exercised
his right to freedom of movement in order to establish himself in another Member State, in which he has
worked and set up his habitual residence, and who has returned to his Member State of origin, where his
family lives, in order to seek work — from making entitlement to one of the benefits referred to in Article
10a of Regulation No 1408/71 conditional upon habitual residence in that State, which presupposes…”
101
Council Directive 83/182/EEC of 28 March 1983 on tax exceptions within the Community for certain
means of transport temporarily imported into one Member State: “For the purposes of this Directive,
‚normal residence‘ means the place where a person usually lives, that is for at least 185 days in each
calendar year, because of personal and occupational ties, or, in the case of a person with no occupational
ties because of personal ties which show close links between that person and the place where he is living.
However, the normal residence of a person whose occupational ties are in a different place from his
personal ties and who consequently lives in turn in different places situated in two or more Member
States shall be regarded as being the place of his personal ties, provided that such person returns there
regularly. This last condition need not be met where the person is living in a Member State in order to
carry out a task of a definite duration. Attendance at a university or school shall not imply transfer of
normal residence.”
102
Judgement of the Court (sixth chamber), 23 April 1991,
Rigsadvokaten v Nicolai Christian Ryborg
,
C-90/97, p. 1972.