Regulation 4/2009 and rules of jurisdiction

Transcription

1 Prof. (em.) Dr. Dieter Martiny Frankfurt (Oder)/Hamburg Regulation 4/2009 and rules of jurisdiction EJTN - Seminar on Maintenance Obligations in Europe 5 th - 6 th December 2013 Sofia, Bulgaria

2 A. Introduction Rules on jurisdiction (Art. 3 8, 10) Examination as to admissibility (Art. 11) Lis pendens, related actions (Art. 9, 12, 13) Provisional measures (Art. 14) 2

3 B. Applicability Substantive scope, Art. 1(1) Maintenance obligations : autonomously interpreted (Rec. 11) Applicability of Maintenance Regulation to maintenance claims 3

4 Matrimonial property excluded Maintenance of the spouse, Case-law of the ECJ ECJ Case 143/78, de Cavel (No 1), [1979] ECR 1055 Autonomous nature of the terms rights in property arising out of a matrimonial relationship and maintenance ECJ Case 120/79, de Cavel (No 2), [1980] ECR 731 French compensatory payments are concerned with financial obligations between Former spouses after divorce which are fixed on the basis of their respective needs and resources and are equally in the nature of maintenance. Not simply division of property Aim of the decision ECJ Case C-220/95, Van den Boogaard, [1997] ECR I-1147 Reasoning of the judgment as a crucial factor. 4

5 Territorial scope All Member States apply the M. Reg. Universal application Also applicable if parties have habitual residence in Non-EU-Staates 'Cross-border implication' necessary? Criteria for international context o Foreign nationality? o Habitual residence in another State? 5

6 Temporal scope, Art. 75 (1), 76 Regulation applies only to proceedings instituted, after its date of application, Regulation shall apply from 18 June Proceedings instituted after 18 June

7 C. Other jurisdictional bases I. Brussels I Proceedings instituted before 18 June 2011 Replaced by Maintenance Regulation 7

8 II. Lugano Convention 2007 Only if no EU Member States involved Between EU Member States M. Reg. prevails (Art. 64(1) Lugano Conv.) 8

9 III. Hague Convention 2007 The 2007 Hague Convention does not contain any direct rules on jurisdiction; contains only indirect rules on jurisdiction relevant in the context of recognition and enforcement and a negative rule on jurisdiction contained in Art. 18 of the Convention which corresponds the rule contained in Art. 8 M. Reg. 9

10 IV. National law M. Reg. prevails over national rules No room for national law 10

11 D. Jurisdiction I. Grounds for jurisdiction under European Maintenance Regulation General jurisdiction (Art. 3 lit. a, b) Ancillary jurisdiction (Art. 3 lit. c,d) Choice of court (Art. 4, 5) Special jurisdiction (Art. 6, 7) No referral to national rules (Rec. 15) 11

12 II. General jurisdiction (Art. 3) No hierarchy of jurisdiction: Concurrent jurisdiction 1. Habitual residence of the defendant (Art. 3(a)) Court for the place where the defendant is habitually resident. Absence of a definition in the Regulation Autonomous and uniform definition ECJ Case C-195/08 PPU, Rinau, [2008] ECR I 5271 (Brussels IIbis) 12

13 Overall assessment A person s habitual residence is the place where the person has established on a fixed basis the permanent or habitual centre of his interests, with all the relevant factors being taken into account. Difficult determination of habitual residence in specific situations o Change of residence o Multiple residence? Absence of an habitual residence 13

14 ECJ Case C-408/13, Huber v Huber, OJ EU 2013 C 274/15: Is it compatible with Art. 3(a) and (b) M. Reg. if it is provided in 28(1)(1) of the German Foreign Maintenance Act (Auslandsunterhaltsgesetz, AUG), that, if a party concerned does not have his or her habitual residence in Germany, the court which is to rule exclusively on applications in maintenance cases falling under Art. 3(a) and (b) M. Reg. is the Local Court which has jurisdiction for the seat of the Higher Regional Court in whose area of jurisdiction the defendant or creditor has his or her habitual residence? 14

15 2. Habitual residence of the creditor (Art. 3(b)) Court for the place where the creditor is habitually resident. Overall assessment Children: ECJ Case C-523/07, A, [2009] ECR I-3327 ECJ Case C-497/10, Mercredi v Chaffe, [2010] ECR I (baby) Creditor: Dominant view: not for public bodies. (Cf. Art. 2(1) no. 10, Art. 64(1) M. Reg., Rec. 14) Also for debtor against creditor? Disputed Point in time: Perpetuatio fori possible (Cf. Art. 3(1)(a), 8 Brussels IIbis, Art. 5 no. 2 Brussels I) 15

16 Ancillary jurisdiction (Art. 3 (c)) Court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings o Divorce o Legal separation o Annulment for marriage or registered partnership. o Paternity proceedings Unless that jurisdiction is based solely on the nationality of (only) one of the parties. 16

17 Ancillary jurisdiction (Art. 3(d)) Court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings. unless that jurisdiction is based solely on the nationality of (only) one of the parties. (Cf. Art. 2 no. 7, Art. 8 Brussels IIbis) 17

18 III. Other grounds for jurisdiction Choice of court (Art. 4) Disputes in matters relating to a maintenance obligation which has arisen or may arise Choice of court admissible, but restricted (Cf. Art. 23 Brussels I) 18

19 Connecting factors (1): Parties may agree that the following court or courts of a Member State shall have jurisdiction to settle any disputes between them: (a) a court or the courts of a Member State in which one of the parties is habitually resident; (b) a court or the courts of a Member State of which one of the parties has the nationality; Choice of a nationality which is not effective? (cf. ECJ Case C-168/08, Hadadi, [2009] ECR I-6871: Brussels IIbis) 19

20 Connecting factors (2): Parties may agree that the court or courts of a Member State shall have jurisdiction to settle any disputes between them: (c) in the case of maintenance obligations between spouses or former spouses: (i) the court which has jurisdiction to settle their dispute in matrimonial matters; or (ii) a court or the courts of the Member State which was the Member State of the spouses last common habitual residence for a period of at least one year. 20

21 Relevant time The conditions referred to in Art. 4 points (a), (b) or (c) have to be met at the time the choice of court agreement is concluded or at the time the court is seised (Art. 4(1)). Exclusivity The jurisdiction conferred by agreement shall be exclusive unless the parties have agreed otherwise (Art. 4(1)). 21

22 Form requirement (Art. 4 (2)) A choice of court agreement shall be in writing. 'writing': written, signature not necessary (?) Any communication by electronic means which provides a durable record of the agreement shall be equivalent to 'writing. (Cf. Art. 23(1), (2) Brussels I) 22

23 Maintenance obligation towards a child (Art. 4 (3)) No choice of court for a dispute relating to a maintenance obligation towards a child under the age of 18. No similar restriction for Art. 5 (?) 23

24 Lugano Convention (Art. 4(4)) Conditions: Parties have agreed to attribute exclusive jurisdiction to a court or courts of a State party to the Lugano Convention of This State is not a Member State, eg Norway Result: Lugano Convention shall apply except in the case of the disputes referred to in Art. 4(3) M. Reg. (children under 18) 24

25 Jurisdiction based on the appearance of the defendant (Art. 5) Defendant enters an appearance. Rule does not apply where appearance was entered to contest the jurisdiction. (Cf. Art. 24 Brussels I) 25

26 Subsidiary jurisdiction (Art. 6) Conditions: No court of a Member State has jurisdiction pursuant to Art. 3, 4 and 5 and no court of a State party to the Lugano Conv. which is not a Member State has jurisdiction pursuant to the provisions of that Convention. Result: Courts of the Member State of the common nationality of the parties shall have jurisdiction. Multiple nationalities: Without any test of effectivity or closest connetion? Not available to public bodies. 26

27 Forum necessitatis (Art. 7) Conditions: No court of a Member State has jurisdiction pursuant to Art. 3, 4, 5 and 6. Proceedings cannot reasonably be brought or conducted in a third State with which the dispute is closely connected or Impossibility to bring or conduct proceedings Rec. 16: e.g. civil war in the third State. 27

28 The courts of a Member State may, on an exceptional basis, hear the case if sufficient connection with the Member State of the court seised. The dispute must have a sufficient connection with the Member State of the court seised (e.g. nationality of one of the parties, Rec. 16) 28

29 Modification ('Limit on proceedings'; Art. 8 (1)) Application for modification (cf. Art. 18 Hague Maintenance Conv. 2007) Conditions: Decision is given in a Member State or from Hague Maintenance Conv State. Creditor remains habitually resident in the State where the decision was given. Result: Proceedings to modify an existing decision or to have a new decision given cannot be brought by the debtor in any other Member State. 29

30 Modification ('Limit on proceedings'; exceptions (Art. 8(2)) Art. 8(1) does not apply: (a) where the parties have agreed in accordance with Art. 4 to the jurisdiction of the courts of that other Member State; (b) where the creditor submits to the jurisdiction of the courts of that other Member State pursuant to Art. 5; (c) where the competent authority in the 2007 Hague Conv. State of origin cannot, or refuses to, exercise jurisdiction to modify the decision or give a new decision; or (d) where the decision given in the 2007 Hague Conv. State of origin cannot be recognised or declared enforceable in the Member State where proceedings to modify the decision or to have a new decision given are contemplated. 30

31 Examination as to jurisdiction (Art. 10) Ex officio examination Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation it shall declare of its own motion that it has no jurisdiction. (Cf. Art. 17 Brussels IIbis, Art. 25, 26 Brussels I) 31

32 Examination as to admissibility (Art. 11) 1.Where a defendant habitually resident in another State does not enter an appearance, the court with jurisdiction shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end. 2. Art. 19 of Service Reg. (No 1393/2007) shall apply instead of the provisions of para. 1 of this Article if the document instituting The proceedings or an equivalent document had to be transmitted from one Member State to another pursuant to that Regulation. 32

33 3. Where the provisions of Service Reg. are not applicable, Art. 15 of the Hague Service Conv. of 1965 shall apply if the document instituting the proceedings or an equivalent document had to be transmitted abroad pursuant to that Convention. (Cf. Art. 18 Brussels IIbis, Art. 26(2) Brussels I ) 33

34 Seising of a court (Art. 9) A court shall be deemed to be seised: (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the claimant has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the claimant has not subsequently failed to take the steps he was required to take to have the document lodged with the court. (Cf. Art. 16 Brussels IIbis, Art. 30 Brussels I) 34

35 Lis pendens (Art. 12) Proceedings involving the same cause of action ( le même objet et la même cause ) and between the same parties are brought in the courts of different Member States. Any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established (Art. 12(1)). Under the heart of the actions doctrine of the ECJ, it is sufficient that the actions relate to the same object or, alternatively, the same ends and have the same basis (the facts and rule of law relied on as the basis of the action) (ECJ Case C-406/92, Tatry v Macief Rataj, [1994] ECR I-5439) (Cf. Art. 19 Brussels IIbis, Art. 27 Brussels I) 35

36 Denial of jurisdiction (Art. 12 (2)) Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court. 36

37 ECJ Case C-442/13, Nagy v Nagy, OJ EU 2013 C 325/14 1. Are two proceedings brought between the same parties, where in one set of proceedings the child makes a claim against the father for past and current maintenance, and the father, in divorce proceedings, seeks a determination of his maintenance obligation relating to that child and of payments to be made to the mother after the divorce? 2. Where, in one set of proceedings, the maintenance creditor makes a claim for current maintenance and, in another set of proceedings, the maintenance debtor seeks to have his obligation to pay current maintenance postponed to a later date, will the proceedings then involve the same cause of action from the later date? 37

38 Related actions (Art. 13) 1. Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings. 2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof. 3. Actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings (Art. 13 (3)). (Cf. Art. 28 Brussels I) 38

39 Provisional, including protective, measures (Art. 14) Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter. (Cf. Art. 20 Brussels IIbis, Art. 31 Brussels I) 39

40 E. Conclusion Improvement of maintenance enforcement Preference for the creditor Broad Jurisdiction, restricted choice of court No room for national procedural law Difficulties of coordination 40