Explanatory Memorandum to COM(2009)373 - Conclusion by the EC of the convention on the international recovery of child support and other forms of family maintenance - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2009)373 - Conclusion by the EC of the convention on the international recovery of child support and other forms of family maintenance. |
|---|---|
| source | COM(2009)373  |
| date | 28-07-2009 |
Two international instruments were concluded on 23 November 2007 under the Hague Conference on Private International Law namely, the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance and the Protocol on the Law Applicable to Maintenance Obligations.
The Protocol is designed to offer greater legal certainty and predictability to maintenance creditors and debtors. On 23 February 2009, the Commission adopted a proposal for a Council Decision on the conclusion by the European Community of the Protocol i.
The objective of the Convention is to ensure the effective international recovery of child support and other forms of family maintenance. Since the vast majority of maintenance claims involve children, the Convention is first and foremost a measure to protect children. This proposal concerns the conclusion by the European Community of the Convention.
Contents
The European Community has set itself the objective of creating a genuine judicial area based on the principle of mutual recognition of judicial decisions.
On 18 December 2008 the Council adopted Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations i. Conclusion of the Convention by the Community would bolster existing Community rules on the recognition and enforcement of maintenance decisions and administrative cooperation between the central authorities, by creating a harmonised set of rules within the Community in respect of third countries which will become Contracting Parties to the Convention.
3. THE 2007 CONVENTION ON THE INTERNATIONAL RECOVERY OF CHILD SUPPORT AND OTHER FORMS OF FAMILY MAINTENANCE
The European Commission negotiated the Convention on the basis of the negotiating directives given by the Council. The resulting Convention is in line with these negotiating directives.
The objective of the Convention — to ensure the effective recovery of family maintenance — is pursued by a combination of means including i a comprehensive system of cooperation between the authorities of the Contracting States in the processing of international applications, i a requirement that Contracting States make available applications for establishment and modification of maintenance decisions, i provisions which ensure effective access to cross-border maintenance procedures, i a system for recognition and enforcement of maintenance decisions made in Contracting States, i expedited and simplified procedures for recognition and enforcement and i a requirement of effective measures for prompt enforcement.
The Convention covers many practical matters that can affect the way international claims are pursued — for example, language requirements, standardised forms and exchange of information on national laws. It also encourages the use of new information technologies to cut costs and delays.
The whole Convention applies on a mandatory basis to child support cases. All the Chapters also apply to applications for the recognition and enforcement of spousal support when made in conjunction with a claim for child support. Other claims for the recognition and enforcement of spousal support come within the compulsory scope of the Convention, but do not benefit from the provisions of Chapters II and III, which establish the system of administrative cooperation via Central Authorities and which also contain provisions for assistance in child support cases. A Contracting State may declare that it applies the Convention or a part of it to any other maintenance obligations arising from a family relationship, parentage, marriage or affinity.
The Convention includes the possibility for Regional Economic Integration Organisations to become a party (Article 59).
Article 51 i provides for a disconnection clause stating that the Convention shall not affect the application of instruments of a Regional Economic Integration Organisation that is a Party to this Convention, adopted after the conclusion of the Convention, on matters governed by the Convention, provided that such instruments do not affect, in the relationship of Member States of the Regional Economic Integration Organisation with other Contracting States, the application of the provisions of the Convention. As concerns the recognition or enforcement of decisions as between Member States of the Regional Economic Integration Organisation, the Convention shall not affect the rules of the Regional Economic Integration Organisation, whether adopted before or after the conclusion of the Convention.
Article 62 includes a possibility to make reservations and Article 63 the possibility to make declarations as regards certain Articles.
In accordance with the jurisprudence i of the Court of Justice, the Community has exclusive external competence in the fields covered by Regulation (EC) No 4/2009. This Regulation covers all the areas included in the Convention. In the light of the jurisprudence referred to above, matters regarding recognition and enforcement fall under exclusive Community competence. The Commission is of the opinion that administrative cooperation as well as rules on legal aid likewise fall under exclusive Community competence since these rules of the Convention would also affect the Community rules.
If there were no rules on administrative cooperation in the Community, the rules of the Convention would apply. Community rules on the matters covered by the Convention, including administrative cooperation, are laid down in Regulation (EC) No 4/2009 and the application of the rules of the Convention among Member States would affect these Community rules. Application of Regulation (EC) No 4/2009 in the Community including rules on administrative cooperation is guaranteed by a disconnection clause (Article 51 i of the Convention). Such a clause does not exclude the potential impact of the Convention on Community law. On the contrary, inclusion of a disconnection clause in the agreement may indicate that the Community rules are affected (see Opinion 1/03 ECJ). It must also be noted that the objective of the Convention as a whole is to ensure effective recovery of maintenance; the rules on administrative cooperation exist only for the purpose of obtaining and enforcing maintenance decisions. In addition, the rules on administrative cooperation laid down in Regulation (EC) No 4/2009 may apply to decisions given in third countries. The Commission proposes therefore that the Community should conclude the Convention alone.
Article 62 i allows the Contracting States to make, not later than the time of ratification, acceptance, approval or accession, one or more of the reservations provided for in Articles 2 i, 20 i, 30(8), 44 i and 55 i.
It is proposed not to make any reservations. The Convention should apply as such, and there are no reasons to limit the scope according to Article 2 i or recognition and enforcement according to Articles 20 i and 30(8). The Commission also believes that the Central Authorities of the Member States should agree to communicate with other Central Authorities in English and in French in addition to the official language of the requested Member State. As a consequence, no reservation of the kind provided for in Article 44 i should be made. At present, there is no need to reflect on the reservation under Article 55 i.
Article 63 i provides for the possibility to make declarations referred to in Articles 2 i, 11(1)(g), 16 i, 24 i, 30(7), 44 i and i, 59 i and 61 i. All the declarations should be made by the Community since it is proposed that only the Community will be a party to the Convention.
Article 59 i allows the European Community to declare at the time of signature, acceptance, approval or accession that it exercises competence over all the matters governed by the Convention and that the Member States that have transferred competence to it shall be bound by the Convention. The Commission proposes that such a declaration should be made.
The application of the Convention should be uniform throughout the Community. On main questions, like the scope of application, this requirement should be respected without exception. Under Article 2 i any Contracting State may declare that it will extend the application of the whole or any part of the Convention to any maintenance obligation arising from a family relationship, parentage, marriage or affinity, including in particular obligations in respect of vulnerable persons. Any such declaration shall give rise to obligations between two Contracting States only in so far as their declarations cover the same maintenance obligations and parts of the Convention.
The Commission proposes that the scope of the whole Convention should be extended to all maintenance obligations arising from a family relationship, parentage, marriage or affinity which would mean that the scope would be the same as the scope of Regulation (EC) No 4/2009. Regulation (EC) No 4/2009 has a wide scope of application in order to guarantee equal treatment of all maintenance creditors. Similarly, the fact that maintenance claims not involving children or spouses are rare supports the logic of using the same rules for all maintenance claims. This also argues in favour of extending the scope of the Convention. In addition, some Member States recognise and enforce decisions relating to maintenance obligations on the basis of the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations without any reservations permitted by Article 26 of that Convention. If the scope were not to be extended as proposed, it would mean that those Member States would take steps backwards in their relations with certain third states.
It is clear that the Community should not make declarations relating to the use of child-centred means test under Article 16 i. It is also evident that declarations on an alternative procedure under Article 24 i should not be made since during the negotiations the Community was in favour of the more effective procedure on application for recognition and enforcement provided for in Article 23. Also, the submission of applications for recognition and enforcement of a maintenance arrangement should not be limited under Article 30(7).
A declaration with respect to non-unified legal systems provided for in Article 61 i is not necessary since the Convention should apply in every Member State and in every territorial unit. Article 61 i also states that if no declaration is made under Article 61, the Convention shall extend to all territorial units of that State.
In certain special situations where there are objective and serious grounds for a differentiated application of the Convention, Member States could indicate if they wish to apply the positive declarations included in the Convention.
Under Article 11(1)(g) a Contracting State may specify for any application other than an application for recognition, or recognition and enforcement of a maintenance decision under Article 10(1)(a) and 2(a) by declaration any additional information or documents required by its Central Authority to process the application, or by its judicial or administrative authorities to conduct the necessary proceedings. The Commission will not object if any Member State wishes to use the possibility provided for in this Article since in certain cases additional information might be necessary in the interests of efficient application of the Convention.
Under Article 44 i any application and related documents shall be in the original language, and shall be accompanied by a translation into an official language of the requested State or another language which the requested State has indicated, by way of declaration, it will accept, unless the competent authority of that State dispenses with translation. It is proposed to allow the Member States to accept translations even into languages other than their official language since this would make it easier to apply the Convention.
Under Article 44 i a Contracting State which has more than one official language and cannot, for reasons of internal law, accept for the whole of its territory documents in one of those languages shall, by declaration, specify the language in which such documents or translations thereof shall be drawn up for submission in the specified parts of its territory. It is proposed to allow this possibility for the Member States where various languages are official only in part of the territory (such as Belgium).
Member States wishing to make use of the possibilities under Articles 11(1)(g), 44 i or 44 i should communicate this information to the Commission and also notify the content of their declarations providing objective and serious grounds. If any Member State later wishes to modify or withdraw a declaration referring to it, it should communicate this information to the Commission, which will then notify the depositary.
Since it is proposed that only the Community should be a party to the Convention, Member States should communicate to the Commission the information on the designation of the Central Authority or Central Authorities referred to in Article 4 together with any information concerning laws, procedures and services provided for in Article 57. The Commission would communicate this information to the Permanent Bureau of the Hague Conference at the time of conclusion of the Convention.
It is proposed that Member States should communicate all the information to the Commission by 18 September 2010, which is also the deadline for communicating to the Commission information on contact details and languages under Article 71 of Regulation (EC) No 4/2009.