Explanatory Memorandum to COM(2005)649 - Jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2005)649 - Jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance ... |
|---|---|
| source | COM(2005)649  |
| date | 15-12-2005 |
At its meeting in Tampere on 15 and 16 October 1999, the European Council asked in matters relating to maintenance obligations for the establishment of special common procedural rules to simplify and accelerate the settlement of cross-border disputes and for the removal of intermediate measures needed for the recognition and enforcement in one Member State of a judgment given in another Member State.
The Mutual Recognition Programme in Civil Matters, adopted on 30 November 2000 i, calls for elimination of the exequatur procedure in matters related to maintenance obligations, which are already covered by the Council Regulation (EC) n° 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (hereafter: ‘Brussels I’) i. In addition, this programme suggests in general that it will “sometimes be necessary, or even essential, to lay down a number of procedural rules at European level, which will constitute common minimum guarantees” , or even “to be directed towards a certain harmonisation of the procedures”. It envisages the adoption of ancillary measures of mutual recognition aiming at “seeking to make more efficient the enforcement, in the requested State, of judgments delivered in another Member State” , in particular by allowing “precise identification of a debtor’s assets in the territory of the Member States” so that mutual recognition can operate in the context of “enhancing cooperation between Member States' courts”, and finally measures for the “harmonisation of conflict-of-law rules”.
The relevance of this programme was reaffirmed by the European Council in November 2004 at the time of the adoption of ‘the Hague programme’[3], in which it is underlined that “continued implementation of the programme of measures on mutual recognition must therefore be a main priority in the coming years to ensure its completion by 2011”.
The Council and the Commission adopted, on 2 and 3 June 2005, a common Action Plan which translates the Hague programme in concrete actions and which mentions, as regards judicial cooperation in civil matters, the adoption in 2005 of “proposals on maintenance obligations” i.
The Hague Conference of Private International Law i also launched work on maintenance obligations so as to modernise the rules in the existing Conventions i. Three meetings of a Special Commission were devoted to the preparation of a new general convention on maintenance obligations in May 2003, June 2004 and April 2005. A fourth meeting of this Special Commission is envisaged for June 2006, possibly followed by a diplomatic session during the first half of 2007. The European Community takes an active part in these negotiations.
The relationships between the negotiations undertaken in The Hague and Community work should be seen in terms of the search for possible synergies between them; these two exercises are not contradictory, but consistent and complementary, as it was pointed out by the European Council in the Hague Programme.
The Community should thus be in a position to adopt a coherent strategy in the international negotiations and in parallel has to continue its efforts to build, among its Members States, a genuine area of freedom, security and justice.
The Hague Conference represents for the Community an international forum for the development of a policy of cooperation in the area of civil justice with the world at large. The discussion forum that it provides is an inestimable source of inspiration for the work being done in the Community. Moreover it is not excluded that in certain specific matters the negotiations in The Hague could produce results which might prove transposable within the European Union.
However, the different level of integration between the Member States when compared with non-member countries and the scale of the objectives pursued by the European Union necessitates seeking specific Community solutions. The cooperation between the Member States, which have at their disposal not only a more consistent and complete system of jurisdiction rules and rules on recognition of judgments, but also a functioning European Judicial Network, can without doubt be much closer than with non-member countries.
The ambition of the proposal is to eliminate all obstacles which still today prevent the recovery of maintenance within the European Union. It will certainly not abolish the economic and social precariousness which afflicts certain debtors and deprives them of employment and of regular income, preventing them from fulfilling their obligations, but it will enable the creation of a legal environment adapted to the legitimate expectations of the maintenance creditors. The latter should be able to obtain easily, quickly and, generally, free of charge, an enforcement order capable of circulation without obstacles in the European area of justice and enabling regular payment of the amounts due.
This new European legal order requires an action which cannot be limited solely to the fine-tuning of the current mechanisms; ambitious measures have to be taken in all relevant areas of the civil judicial cooperation: jurisdiction, applicable law, recognition and enforcement, cooperation and elimination of obstacles for the good conduct of proceedings. The solutions to this multifaceted problem shall be contained in a single instrument.
Three requirements shall guide this action:
1.2.1. Simplifying the citizens’ life
Simplicity is sought in the first place in the conduct of the proceedings necessary for the establishment of the maintenance claim. The rules on jurisdiction laid down in the Brussels I Regulation already allow the maintenance creditor to bring an action before an authority close to him or her, but the situation can still be improved and certain ambiguities eliminated. Once the decision was given, measures have to be taken to give that decision the same force that it has in the Member State of origin, without any further formality. Thus the objective consisting in removing the “intermediate measures” will be achieved.
In a more general way, support and assistance, which today are still insufficient, must be given to the creditor for each stage in the process of recovery of maintenance. The creation of cooperation mechanisms between the Member States pursues this objective. Following the same objective, the possibility of taking all the necessary steps at the place of the creditor’s habitual residence must also be mentioned which includes measures at the enforcement stage itself, in particular the possibility to obtain attachment on wages or on a bank account, to trigger the cooperation mechanisms or to have access to information making it possible to locate the debtor and to evaluate his assets. That is also why it is envisaged to reinforce the guarantees of access to justice by means of a system of legal representation of the maintenance creditors’ interests by the central authorities of the Member States.
Finally, simplicity implies putting an end to the diversity of sources of the law in this field, since today there is no perfectly harmonised set of rules as regards recognition and enforcement of maintenance decisions within the European Union.
Indeed Article 71 of the Brussels I Regulation maintains the application of “conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments” . The last paragraph of that Article states that: “Where a convention on a particular matter to which both the Member State of origin and the Member State addressed are parties lays down conditions for the recognition and enforcement of judgments, those conditions shall apply.” In the ‘particular matter’ of maintenance obligations, 17 Member States out of 25 are parties to the Hague Convention of 2 October 1973 Concerning Recognition and Enforcement Relating to Maintenance Decisions. Between these Member States, it is therefore the ‘conditions’ laid down by the 1973 Convention, prior to the Brussels I Regulations, which continue to be applicable.
In accordance with Article 26 of this Convention, any Contracting State may reserve the right not to recognise or enforce several types of decisions, notably those which concern maintenance between adults or between persons related collaterally or by affinity. The majority of Member States which are Parties to the 1973 Hague Convention i have made one or more reservations on the basis of this provision. The result is an uneven landscape as regards the recognition of maintenance decisions.
This discord mirrors certain differences between Member States regarding the concept of maintenance. The reservations set out in the 1973 Convention allow unlimited expression of these differences. They make it possible to oppose the recognition of certain maintenance decisions on a basis of a certain ‘general clause of ordre public ’. Public policy is no longer used on a case by case basis, a posteriori ; it is used in a general way, and a priori , by the means of a reservation to the 1973 Convention which has priority over Community law.
Such discrepancies should no longer be acceptable within the European Union which has decided, at the highest political level, to favour the free movement of maintenance decisions. They do, however, require a reflection on the way how to meet the concerns of those Member States which had in the previous system expressed the wish to limit such movement.
The main goal of the harmonisation of conflict-of-law rules is to make possible for the creditors to act with full knowledge of the situation, without being subjected to the diversity of national systems. It thus guarantees certain ‘legal predictability’.
On the basis of the rules determining the applicable law, the competent court shall give a decision based on the substantive law which has the closest connection with the case. This also allows avoiding the most unfair situations: the maintenance creditor will obtain a result adapted to his or her situation, without having to suffer from the disparity of the conflict-of-law rules.
Thus, the conflict-of-law rules accompany and facilitate the elimination of ‘intermediate measures’ at the stage of recognition: the decision is less problematic to accept if it is given in accordance with a law designated according to harmonised rules.
Moreover, and in a more direct way, the conflict-of-law rules shall in certain situations put an end to certain applications based on maintenance relationships which are not accepted universally (between brothers and sisters, for example). The conflict-of-law rules are a ‘safety net’, in the area of free movement of decisions; they reassure Member States which have a restrictive approach to the concept of maintenance.
The conflict-of-law rules do not therefore aim at rejecting these differences; this by no means implies harmonisation of the concepts which mirror national needs, whether they are social, economic or cultural, but intends to make sure that no decision will be given on the basis of a law lacking a sufficient connection with the family relationship concerned.
Only the improvement of effective recovery of maintenance is likely to improve substantially and permanently the current situation. This implies making it possible for the creditor to obtain a decision enforceable throughout the territory of the European Union which could then benefit from a simple and harmonised enforcement system. Three requirements have to be met. The first one is to generalise and make automatic the provisional enforcement of all maintenance decisions. The second one consists in abolishing the intermediate measures needed for recognition and enforcement in a Member State of a decision given in another Member State. The third requirement is to adopt a number of measures relating to the enforcement itself: access to information on the situation of the debtor, introducing legal provisions enabling direct deductions of maintenance from wages or bank accounts, strengthening of the ranking of maintenance claims.
All of the objectives pursued by the proposal will be reached with full respect of the fundamental rights guaranteed by the European Union. A balance shall be ensured between maintenance creditors’ and debtors’ rights; in particular, debtors shall always have the right to a fair trial and the right to the protection of personal data.
THE COMMISSION CARRIED OUT A STUDY ON THE RECOVERY of maintenance claims in the Member States of the European Union i.
The first meeting of experts was organised on 3 November 2003 in order to identify the principal aspects for the inclusion in a future Green Paper on maintenance obligations.
The Green Paper on maintenance obligations was adopted by the Commission on 15 April 2004 i. The first responses were the subject of a public hearing organised on 2 June 2004. Other responses arrived at a later date i.
On the basis of another discussion paper drawn up by the services of the Commission which included three preliminary drafts of legislative proposals, a second meeting of Member States’ experts was organised on 12 May 2005. This meeting made it possible to examine all the questions concerning maintenance obligations within the European Union: applicable law, conflict of jurisdiction, recognition, enforceability and enforcement of decisions, harmonisation of certain rules of procedure, cooperation between central authorities, access to information, etc.
The participants at this meeting were then invited to submit to the Commission written comments on the discussion paper and the three draft legislative proposals.
The Commission has undertaken an impact assessment, the conclusions of which appear in a working paper annexed to this proposal. Throughout the impact assessment, contributions of the consulted experts, made within the framework of the Green Paper and afterwards, have been analysed. Several options have been contemplated: the Status Quo, a non legislative action and several modalities of a legislative initiative of the Community. It results from this study that, in order to solve the various problems of maintenance creditors, it is necessary for the Community to foresee a very ambitious action which will cover all the possible spheres of activity.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- 1.1. General context
- 1.1.1. Within the European Union
- 1.1.2. At the international level
- 1.2. Objectives
- 1.2.2. Strengthening legal certainty
- 1.2.3. Ensuring effectiveness and continuity of recovery
- 2. CONSULTATION OF INTERESTED PARTIES
- 3.1. Legal basis
- 3.2. Proportionality and subsidiarity
The subject-matter covered by this proposal is within the ambit of Article 65 of the Treaty establishing the European Community; the legal basis for this proposal is Article 61(c) of the Treaty.
Article 65 attributes legislative powers to the Community with regard to judicial cooperation in civil matters having cross-border implications in so far as necessary for the proper functioning of the internal market.
The measures envisaged in this proposal relate to those which are expressly mentioned in the non exhaustive list set out in Article 65: conflict of jurisdiction, conflict of laws, recognition and enforcement of decisions, elimination of obstacles to the good functioning of civil proceedings, by promoting the compatibility of the rules on civil procedure.
With respect to the internal market requirement, there is a margin of appreciation for the Community institutions in determining whether a measure is necessary for the proper functioning of the internal market. With respect to this proposal, the proper functioning of the internal market is facilitated, because the adoption of a new legal environment intended to improve the recovery of maintenance claims will contribute to eliminating the obstacles to free movement of persons who, currently, suffer from the persistent differences between the Member States in the recovery of maintenance.
Concerning the cross-border requirement, this proposal contains measures on the establishment and enforcement of a decision in situations which all include an international element. The conflict-of-jurisdiction and conflict-of-law rules concern, by definition, international situations, bringing into play legal elements coming from various countries. Provisions on recognition and enforcement of decisions are intended to allow a decision given in a Member State to be automatically enforceable in any other Member State. Some measures for a minimum harmonisation of certain rules on procedure are ancillary to these provisions. The measures on enforcement which are envisaged in the proposal aim at facilitating the enforcement in a Member State of a decision given in another Member State. Finally, provisions on cooperation and exchange of information shall operate only between two different Member States.
This Regulation will be adopted according to the procedure provided for in Article 67 i of the Treaty, under the terms of which the Council acts unanimously after consulting the European Parliament. The Commission is indeed of the opinion that this proposal relates to family law, in accordance with Article 67 i second indent.
This interpretation legally prevails over any other, taking into consideration the very close connections which link maintenance obligations to family law, but such a classification is not without disadvantage. It does not take sufficiently into account the hybrid nature of the concept of maintenance – familial by its roots, but pecuniary in its implementation, like any other debt.
Besides, the Community has considered until now that maintenance obligations could be seen as included in matters related to civil judicial cooperation outside of the sphere of family law. The Brussels I Regulation, following the structure of the Brussels Convention of 27 September 1968, excludes family law, but includes maintenance obligations within its scope of application. In contrast, Council Regulation (EC) n° 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (hereafter: ‘new Brussels II Regulation’) i, covers an essential part of family law (divorce, parental responsibility), but excludes maintenance obligations. Lastly, Regulation (EC) n° 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims i (hereafter: ‘EEO Regulation’) includes the maintenance claims and was adopted according to the co-decision procedure.
Obviously this proposal is submitted in a very different context, since it is exclusively devoted to maintenance obligations which in the previous instruments constituted an ancillary part of their scope. Consequently, the Commission has to respect the terms of the Treaty and observe that this proposal relates to family law and cannot fall therefore within the co-decision procedure.
The disadvantages previously mentioned can be avoided should the Council decide to place maintenance obligations within the scope of the non-family civil judicial cooperation. In accordance with Article 67 i, second indent of the Treaty, the Council, acting unanimously after consulting the European Parliament, may take a decision with a view to providing for all or parts of the areas covered by title IV of the third part of the Treaty to be governed by the procedure referred to in Article 251. It is therefore possible to transfer maintenance obligations from unanimity to co-decision.
The Commission recommends that the Council take such a decision; this would be appropriate in view of both the specific nature of maintenance obligations and the legislative context in which the Community had worked in this area until now.
The objectives of this proposal cannot be accomplished by the Member States themselves. Jurisdiction rules and conflict-of-law rules, as well as rules concerning recognition and enforcement of decisions, have indeed to be identical in order to facilitate the functioning of the internal market. Only an action at the Community level can guarantee the equivalence of rules applicable, as it was the case previously, for example with the Brussels I Regulation. The same reasoning is pertinent for the rules on cooperation: central authorities which are designated have to comply with the same obligations for mutual assistance within the European Union.
This proposal is fully consistent with the principle of proportionality in that it is strictly limited to what is necessary in order to reach these objectives. Conflict-of-law rules, in particular, render the harmonization of the substantial law unnecessary. The rules concerning jurisdiction, and recognition and enforcement of decisions have very little effect on national procedural norms.
The form chosen for the instrument – a regulation – is warranted by a number of considerations. The Member States cannot be left with the discretion not only to determine rules of jurisdiction, the purpose of which is to achieve certainty in the law for the benefit of individuals and economic operators, but also the procedures for the recognition and enforcement of decisions, which must be clear and uniform in all Member States. The same applies for the conflict-of-law rules. The proposal contains indeed uniform rules on applicable law which are detailed, precise and unconditional and require no implementation in national law. If Member States had, on the contrary, margin of appreciation for the implementation of these rules, one would reintroduce legal uncertainty that this proposal is specifically intended to eliminate.
In a more general way, transparency is a vital objective in this context; the rules applicable in the Community should be easily and uniformly understood without the need to seek the provisions of national law that transpose the content of the Community instrument, bearing in mind that national law will very often be foreign to the plaintiff. Opting for a Regulation enables the Court of Justice to ensure that it is applied uniformly throughout the Member States.
3.3. Position of the United Kingdom, Ireland and Denmark.
Title IV of the Treaty, which applies to the matters covered by this proposal for a Regulation, is not applicable in the United Kingdom and Ireland, unless they ‘opt in’ in the manner provided by the Protocol annexed to the Treaty.
Title IV of the Treaty is likewise not applicable in Denmark, by virtue of the relevant Protocol.