I v Health Service Executive.
Date: 2014-06-05
40. First, it is settled case-law that Regulation No 1408/71 established a system for the coordination of national social security schemes and lay down, in Title II thereof, rules governing the determination of the legislation to be applied. Those rules were intended not only to ensure that the persons concerned are not left without social security cover because there is no legislation which is applicable to them, but also to ensure that the persons concerned are subject to the social security scheme of only one Member State, so that the complications arising from more than one system of national legislation being applicable are avoided (see, to that effect, Case C‑589/10 Wencel  EU:C:2013:303, paragraphs 45 and 46 and the case-law cited).
41. While, as indicated in recital 3 in the preamble thereto, Regulation No 883/2004 is intended to modernise and simplify the rules for the coordination of national social security legislation, it maintains the same objectives as those of Regulation No 1408/71.
42. The system introduced by Regulation No 1408/71 used the residence of the person concerned as one of the connecting factors for the determination of the legislation applicable (see, to that effect, Wencel , EU:C:2013:303, paragraph 48). The same applies as regards Regulation No 883/2004.
43. According to Article 1(j) of Regulation No 883/2004, the term ‘residence’ refers to the place where a person habitually resides. That term has an autonomous meaning specific to EU law (see, by analogy, Case C‑90/07 Swaddling EU:C:1999:96, paragraph 28).
44. As the Court has held in relation to Regulation No 1408/71, where a connection may be established between a person’s legal situation and the legislation of a number of Member States, the concept of the Member State in which a person resides refers to the State in which that person habitually resides and where the habitual centre of his interests is to be found (see Case 13/73 Hakenberg EU:C:1973:92, paragraph 32; Swaddling EU:C:1999:96, paragraph 29; and Wencel EU:C:2013:303, paragraph 49).
45. In that context, account should be taken in particular of the family situation of the person concerned; the reasons which have led him to move; the length and continuity of his residence; the fact (where this is the case) that he is in stable employment; and his intention as it appears from all the circumstances (see, to that effect, Case C‑102/91 Knoch EU:C:1992:303, paragraph 23, and Swaddling  EU:C:1999:96, paragraph 29).
46. The list of factors to be taken into account in determining a person’s place of residence, as developed by case-law, is now codified in Article 11 of Regulation No 987/2009. As the Advocate General observed at point 32 of his Opinion, that list, which is not exhaustive, does not establish any order of precedence for the various criteria set out in Article 11(1).
47. It is apparent from the foregoing that, for the purposes of the application of Regulation No 883/2004, a person cannot have simultaneously two habitual residences in two different Member States (see, to that effect, Wencel EU:C:2013:303, paragraph 51), given that, under that regulation, an insured person’s place of residence is necessarily different from his place of stay.
49. Indeed, the length of residence in the Member State in which payment of a benefit is sought cannot be regarded as an intrinsic element of the concept of residence within the meaning of Regulation No 1408/71 (see, to that effect, Swaddling  EU:C:1999:96, paragraph 30).
55. In preliminary ruling proceedings, although it is ultimately for the national court to assess the facts, the Court of Justice, which is called on to provide answers of use to the national court, may nevertheless provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see, to that effect, Case C‑381/99 Brunnhofer EU:C:2001:358, paragraph 65, and Case C‑191/12 Alakor Gabonatermelő és Forgalmazó EU:C:2013:315, paragraph 31).
56. The factors to be taken into account by the national court for the purpose of applying Article 1(j) and (k) of Regulation No 883/2004 include, in particular, the fact that, although I lived in Germany for a long time, that situation does not reflect a personal choice on his part, since, according to the actual wording of the question referred, he was compelled ‘by reason of his acute medical illness and the convenient proximity of specialist medical care physically to remain in that Member State for that period’.
57. In the present case, it is for the national court to verify whether, having regard to the circumstances of the main proceedings, I was fit to travel and whether medical treatment equivalent to that he was receiving in Germany was available in Ireland.