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129
CYIL 7 ȍ2016Ȏ
THE CONCEPTUAL ROLE OF HABITUAL RESIDENCE
The Court repeatedly attributed the common application role to the ostensive
definition of permanent residence and thus departed from its unique function.
This definition fulfilled such a function in the
Angenieux
case in respect to itinerary
situations of business representatives. It is evident that the Court adhered to the
argument a
simili
in its reasoning.
The concept of habitual residence preserved its factual character also outside
social security law and tax law, as proved by the
Brenzler
case.
103
The Court of First
Instance addressed the identification of habitual residence as a question of fact. It
compared the German law concept of ‘
Hauptwohnung
’ with the concept of habitual
residence included in Art. 4 (1)(a) Annex VII to the Staff Regulation. It stated
that the factual concept requires the actual residence of the person concerned.
104
In the reasoning of the decision the Court of First Instance observed a consistent
intepretation retained by the Court of Justice when explaining the substance of the
concept of habitual residence in different fields of law.
105
Habitual residence is:
The place where the person concerned has established, and intends to maintain, the
permanent or habitual centre of his or her interests.
When applying different rules of secondary acts in various normative fields, both
courts place their efforts for thorough action in mutual conformity and coherence.
The habitual residence operates as a decisive consideration in social security law, tax
law and staff regulations. The habitual residence also became an essential criterion for
the grant of the expatriation allowance. It explains that the purpose of the expatriation
allowance is to compensate officials for the extra expense and inconvenience of being
obliged to change their residence and move to the country of employment.
At the same time the Court explains the content of the concept of expatriation.
It recalls, furthermore, that the concept of expatriation also depends on the personal
position of an official, that is to say, on the extent to which he is integrated into his
new environment, which is demonstrated for example, by habitual residence or by
the main occupation pursued.
106
The concept of expatriation adopted one of the
components of the legal concept of domicile of choice as it had been determined in
Roman law long ago. The content of the concept includes, according to the Court,
integration into the new environment. The same paragraph is referred to by the
Court of First Instance also in the case
Anna Herrero Romeu
.
The concept of habitual residence had been transferred into the branch of family
law in the sixties of the last century; firstly in the form of an international treaty
103
Judgment of the Court of First Instance (Third Chamber), 10 July 1992,
Elisabeth Benzler v Commission
of the European Communities
, T-63/91, pp. 2103-2104.
104
Ibid.
105
Ibid.
, p. 2106.
106
Judgment of the Court (Third Chamber), 15 September 1994,
Pedro Magdalena Fernández v Commission
of the European Communities
, C-452/93 P, p. 4308.