Robin Swaddling v Adjudication Officer.
Date: 1999-02-25
24 A benefit such as income support is, by reason of the fact that it is listed in Annex IIa, governed by the coordination rules of Article 10a and, consequently, constitutes a special non-contributory benefit within the meaning of Article 4(2a) (see, to that effect, Case C-20/96 Snares [1997] ECR I-6057, paragraph 32, and Case C-297/96 Partridge [1998] ECR I-3467, paragraph 33).
28 Pursuant to Article 1(h) of Regulation No 1408/71, the term `residence' for the purposes of that regulation `means habitual residence' and therefore has a Community-wide meaning.
29 The phrase `the Member State in which they reside' in Article 10a of Regulation No 1408/71 refers to the State in which the persons concerned habitually reside and where the habitual centre of their interests is to be found.  In that context, account should be taken in particular of the employed person's family situation; 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, mutatis mutandis, concerning Article 71(1)(b)(ii) of Regulation No 1408/71, Case 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).
30 For the purposes of that assessment, however, the length of residence in the Member State in which payment of the benefit at issue is sought cannot be regarded as an intrinsic element of the concept of residence within the meaning of Article 10a of Regulation No 1408/71.  In particular, when, as in the present case, an employed person, on returning to his State of origin after exercising his right to freedom of movement, has made it clear at the time of applying for income support that he intends to remain in his State of origin, where his close relatives live - whilst expressing his readiness, should the need arise in the context of some future employment, to travel from time to time to other Member States - he cannot be deemed not to satisfy the condition concerning residence within the meaning of Article 10a merely because the period of residence completed in his State of origin is too short.
31 The United Kingdom Government, however, maintains that Mr Swaddling should have been able, pursuant to Article 69 of Regulation No 1408/71 and under the conditions listed therein, to obtain unemployment benefit under French legislation for a maximum period of three months as from the date of his departure from France, with the result that he could have received those benefits throughout the period considered necessary to establish habitual residence for the purposes of British legislation.  The fact that his employer did not pay contributions to the competent institution should not have affected his rights in so far as Article 7 of Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 282, p. 23) requires Member States to take the measures necessary to ensure that non-payment of compulsory contributions due from the employer, before the onset of his insolvency, to their insurance institutions under national statutory social security schemes does not adversely affect employees' benefit entitlement in respect of those insurance institutions in so far as employees' contributions are deducted at source from the remuneration paid.