3.

The main point regarding the applicability of Article 71 (1) (b) (ii) to a case like that pending before the Belgian Cour de Cassation must accordingly be considered notwithstanding the fact that it does not come within the categories laid down by the said Administrative Commission in Decision No 94. Having dealt with that point, it will be perceived that in establishing one of the categories of workers who are covered by the system, Article 71 (1) (b) (ii) applies a concept which is partly negative (“a worker, other than a frontier worker”) and partly positive (“[a worker] who is wholly unemployed and who makes himself available for work to the employment services in the territory of the Member State in which he resides, or who returns to that territory”). There is no doubt that the provision in question has been broadly worded so that it appears at first sight inappropriate to restrict its scope to the categories listed in Decision No 94 of the Administrative Commission. Since residence is the essential factor for the application of the relevant provision it must first be considered whether the Community provisions in the relevant field are of assistance in interpreting this concept. Article 1 of Regulation No 1408/71, which sets out a series of definitions for the purposes of the regulation, provides at letter (h) that ‘“residence” means habitual residence’. The Court of Justice gave a ruling on the same definition, which was previously contained in Regulation No 3, in its judgment of 12 July 1973 in Case 13/73 (Angenieux v Hakenberg, [1973] ECR 935). The Court considered the problem in so far as it is related to the interpretation of Articles 1 (h), 12 and 13 of Regulation No 3 with regard to a French business representative who for nine months of the year moved about Germany to visit clients without having a fixed place of residence and who spent the rest of the year in France, where the undertakings represented by him had their registered offices. In paragraph (3) of the operative part of the said judgment it was stated that ‘By “permanent residence”, in the sense in which that term is used in Article 13 (1) (c) (first section) of Regulation No 3, as amended by Regulation No 24/64 and defined by Article 1 (h) of the same regulation, there must be understood, in the case of a business representative pursuing the kind of working activities above described, the place in which he has established the permanent centre of his interests and to which he returns in the intervals between his tours’. This solution is closely linked to the particular situation of business representatives and cannot be purely and simply transposed to the present case. Nevertheless, two passages from the grounds of the said judgment should be emphasized: the first (ground of judgment No 29) states that ‘permanent residence is to be determined by taking into account factors other than those connected with work’; the second (ground of judgment No 31) that ‘the possession of a permanent address in a Member State is … to be regarded as a stabilizing factor’. I think we should further note that this view is in accordance with the spirit of the resolution adopted by the Committee of Ministers of the Council of Europe on 18 January 1972 on the subject of bringing legal concepts of ‘domicile’ and ‘residence’ into line with each other. According to Article 9 of the resolution, in deciding whether residence is habitual, account must be taken of the length and continuity of residence in addition to other facts of a personal or occupational nature arising from constant links between an individual and specific locality. According to Article 10 of the resolution, the individual's intentions are not decisive in themselves but may be taken into account in determining residence. However, the said Decision No 94 of the Administrative Commission by implication concedes that residence is not decided by the material criterion of the amount of time which a worker spends in a State. Indeed, a worker employed in international transport might well spend the major part of his time in a State where he works whilst continuing to reside in another State. Tendencies in the legal systems of certain of the Member States of the Community confirm the importance of three factors which are of assistance in clarifying the concept of residence and the relationship between ‘residence’ and ‘stay’: I refer to the degree of stability, to the weight accorded to the intention of the person and to the fact that a person may possibly live abroad and be employed there whilst maintaining his original residence. For the application of Article 511 of the French Code de la Sécurité Sociale (the Social Security Code), which renders family allowances conditional upon residence, a young person is deemed to reside in France during a stay abroad, even a lengthy one, where that stay is necessary for the completion of occupational training, provided that he maintains his family connexions in the national territory where he previously lived on a permanent basis (see Article 6 of Décret No 65-524 of 29 June 1965, Journal Officiel,3 July 1965, pp. 5615, 5616). Even before the adoption of that provision the French Cour de Cassation had held that a lengthy stay abroad for purposes of study is not incompatible with the maintenance of residence in France provided that the centre of the family relations of the person concerned remains there (judgment of the Cour de Cassation Civile of 24 November 1964, Bulletin Civil 1964, II, p. 556). The scope of German social security legislation is delimited by the alternative criteria of domicile and of habitual residence, the latter amounting in substance to residence. When the person concerned shows that he only intended a temporary stay in a place it is not considered as his habitual residence (cf. paragraph 30 (3) of the Sozialgesetzbuch of 11 December 1975, Bundesgesetzblatt I, p. 3020 (the new German social code)). Within the British social security system the concept of residence denotes a continuous stay in a specific place and this is compatible with temporary absences. For the purposes of applying the relevant legislation a beneficiary maintains his residence in Great Britain even if he stays abroad, provided that he does not intend to abandon his residence in Great Britain, as is held to be the case when a person no longer intends to return there (cf. the case-law cited by H. Calvert in ‘Social Security Law’, London 1974, pp. 42. and 43). In the wider field of civil law the decisions of the Italian Corte di Cassazione in relation to the definition of residence also emphasize the subjective element, that is the intention to settle in a specific place. Nevertheless, residence is not determined merely by the material fact of establishing a place of stay but also by the intention of giving that stay a degree of stability, which may be discerned from the person's way of life and from the development of normal social relations (Judgment No 126 of the Corte di Cassazione of 17 January 1972, Giustizia Civile, Massimario, 1972, p. 71). Nevertheless, a stay may even be of long duration without thereby constituting residence when such stay is extended for reasons of study or work, provided that there is no intention to stay permanently (Judgment No 3029 of the Corte di Cassazione of 12 November 1960, loc. cit., 1960, p. 1177). The element of intention may be discerned in particular by the maintenance elsewhere than at the place of stay of the centre of family relationships and interests, which normally coincide with the place where the family lives (judgment No 64 of the Corte di Cassazione of 10 January 1964, loc. cit., 1964, p. 30). Turning now to the present case we must accept that when a person has completed her education and immediately spends some months in a foreign country in order to improve her knowledge of the language of that country, which she has studied, she cannot be regarded as resident in that State within the meaning of the Community regulation simply because for practical reasons she found temporary employment, the more so if it is clear from her behaviour that she did not intend to settle permanently in the territory of that State and instead wished to maintain as the principal centre of her interests the State in which she formerly lived and in which her family, with whom she had always remained prior to her stay abroad, is domiciled and resident. The emphasis on study as the reason for her stay abroad (which might also be deduced in this case from the shortness of the stay and the fact that the type of work undertaken did not correspond to the vocational training of the person concerned), the retention of a permanent residence for legal purposes in the paternal home and, immediately following her short stay abroad, her return to that home (presumably with the intention of seeking there, after her practical experience in the foreign language, her first steady employment corresponding to her training) in my view constitute factors of sufficient weight for us to accept that the person concerned ‘returned to the country of residence’, to adopt the terminology of the relevant provision.