CYIL Vol. 7, 2016

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.

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