CYIL Vol. 7, 2016

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.

126