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” is used as the connecting factor in many areas of EU legislation, such as:
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)
The criteria for determining residence are explicitly non-exhaustive but include (3):
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.
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.
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).
(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)
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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.
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