Which is your “habitual residence” if you work in different EU countries?

Mar 12, 2021

The European Court of Justice affirmed that a person cannot have simultaneously two habitual residences in two different Member States.

This article is written by Marco Mazzeschi and contributed to our publication on Medium.com.

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Habitual residence as connecting factor

“Habitual residence” is used as the connecting factor in many areas of EU legislation, such as:

  • on jurisdiction and the recognition and enforcement of judgments in matrimonial matters (Regulation No 2201/2003)
  • on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession (Regulation No 650/2012)
  • on the law applicable to divorce and legal separation (Regulation No 1259/2010)
  • on coordination of EU social security systems (Regulation No 883/2004)
  • on jurisdiction, applicable law, recognition and enforcement of decisions in matters of succession (Regulation No 650/2012)

What is “habitual residence”?

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The European Court of Justice (CJEU) held that the Member State of “residence” is

“the State in which the persons concerned habitually reside and where the habitual centre of their interests is to be found.(1)

Habitual residence is considered the place where an individual has his/her centre of interests.

The habitual centre of interests must be determined on the basis of the facts, having regard to all circumstances which point to a person’s real choice of a country as his or her State of residence. (2)

Criteria for determining the place of residence

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The criteria for determining residence are explicitly non-exhaustive but include (3):

  • the duration and continuity of presence on the territory of the Member States concerned;
  • the person’s situation, including: the nature and the specific characteristics of any activity pursued, in particular the place where such activity is habitually pursued, the stability of the activity, and the duration of any work contract;
  • his family status and family ties;
  • the exercise of any non-remunerated activity;
  • in the case of students, the source of their income;
  • his housing situation, in particular how permanent it is;
  • the Member State in which the person is deemed to reside for taxation purposes.

Residence vs temporary stay

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A distinction must be made between “residence” (the place where a person habitually resides) and “stay” (temporary residence).

The term “stay” is characterized by its temporary character and by the intention ofthe person to return to his or her place of residence as soon as the underlying purpose for the stay in another country has been reached.

“Stay” thus requires the physical presence of the person concerned outside of his or her habitual place of residence.

Can a person legitimately claim to have simultaneously two habitual residences in two different Member States? NO

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For the purpose of application of Regulation No 1408/71, the ECJ (4) affirmed that it cannot be accepted, without depriving the provisions of the Regulation of all practical effectiveness, that a person may have, a number of habitual residences in different Member States.

That finding is supported by the Court’s case‑law on the concept of ‘residence’ for the purposes of European Union legislation applicable to social security schemes for migrant workers.

Consequently, it must be concluded that Article 10 of Regulation No 1408/71 must be interpreted as meaning that,

a person cannot have simultaneously two habitual residences in two different Member States.

The principle has been confirmed by a recent decision of the CJEU (5) interpreting Regulation No 650/2012 (Succession Regulation), where the Court affirmed

The last habitual residence of the deceased, within the meaning of Regulation No 650/2012 , must be established by the authority dealing with the succession IN ONLY ONE of those Member States.

What is “residence” in Italy?

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Each EU Member States may in principle provide (in their national legislation) for additional conditions, for as long as these criteria are compatible with the EU law.

In Italy, the place of residency (residenza) is considered to be where the person has his/her “usual living” (“dimora abituale”). That is to say, where the person and family live on a day to day basis (art. 43 of the Civil Code). The current place of residency is an exact address usually corresponding to a residential building (it cannot be an office). It is not enough to show the intention of residing in a particular place; this must be assessed on the basis of objective grounds (i.e. the person/s must be physically present at the chosen address).

References

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Photo by Humble Lamb on Unsplash

(1) CJEU, Case C-90/97 Swaddling [1999] ECR I-1075, paragraph 29

(2) CJEU, Case C-76/76 Di Paolo [1977] ECR 315, paragraphs 17 to 20, and Case C-102/91 Knoch [1992] ECR I-4341, paragraphs 21 and 23

(3) Art. 11(1) Regulation No 987/2009 of 16 September 2009

(4) CJEU, Case C-589/10 Wencel, paragraphs 43 to 51

(5) CJEU, case C-80/19 E.E, paragraph 45

(6) see also Practical guide on the applicable legislation in the European Union (EU), the European Economic Area (EEA) and in Switzerland — European Commission — Employment, Social Affairs and Equal Opportunities (December 2013)

Disclaimer: The information provided on this article (i) does not, and is not intended to, constitute legal advice; (ii) are for general informational purposes only and may not constitute the most up-to-date legal or other information (iii) this website may contain links to other third-party websites. Such links are only for the convenience of the reader; (iv) readers should contact their attorney to obtain advice with respect to any particular legal matter.

Marco Mazzeschi

Attorney at law. One of the leading corporate immigration lawyers in Italy. Admitted to the Milan Bar Association (1988) and to the Taipei Bar Association (2016), a member of the American Immigration Lawyers Association (AILA) and an accredited partner of Invest in Tuscany. Schedule a consultation call

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