EJTN - Seminar on Maintenance Obligations in Europe Sofia (Bulgaria) 5 December 2013 Council Regulation 4/2009, of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations an overview Alegría Borrás Professor of Private International Law University of Barcelona (Spain) I. Setting the scene 1. The diversity of legal systems on maintenance. Its consequences in international cases. 2. The plurality of instruments on maintenance The 1956 New York Convention and the 1956, 1958 and 1973 Hague Conventions II. Maintenance obligations in the European Community: antecedents 1. The 1968 Brussels Convention and the 1988 Lugano Convention 2. The Regulation 44/2001 (Brussels I Regulation) and the 2007 Lugano Convention (Lugano revised) III. The recent instruments on international recovery of maintenance obligations 1. Family law in the European Union The limits of Regulations 2201/2003 (Brussels II bis) and 1259/2010 (Rome III) 2. The Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance and the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations 3. The position of the Member States of the European Union. The case of the United Kingdom and the case of Denmark IV. General trends of Regulation 4/2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations 1. The object of the Regulation the application of the Regulation and transitional provisions arts. 1 and 75-76 2. The autonomous qualification of concepts - art. 2
2 3. All-encompassing text: Jurisdiction, applicable law, recognition and enforcement of decisions and cooperation among authorities. The application of the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations (arts. 15 and 76) 4. The role of autonomy: the possibilities of choice of court and designation of the applicable law art. 4 of the Regulation and art. 8 of the Protocol 5. The relationship with other instruments: European Union instruments and international Conventions Arts. 68 and 69. The possibility to conclude bilateral instruments. V. Final considerations DOCUMENTATION The basic instruments for this intervention, as well as for all the Seminar, are the following: - Council Regulation (EC) No 4/2009, of 18 December 2008, on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations, published in the Official Journal of the European Union L 7, of 10 January 2009. - Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, publishes as Annex to the decision of the European Union to be obliged by the Protocol, in Official Journal of the European Union L 331, of 16 December 2009. - Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, in the website of the Hague Conference on Private International Law http://www.hcch.net or as an annex to the Council Decision of 9 June 2011 on the approval, on behalf of the European Union, of the Convention, in Official Journal of the European Union L 192, of 22 July 2011. Other documents are relevant for this intervention, - Council Decision of 30 November 2009 on the conclusion by the European Community of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, in Official Journal of the European Union L 331, of 16 December 2009. - Commission Decision of 8 June 2009 on the intention of the United Kingdom to accept Council Regulation No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation
3 in matters relating to maintenance obligations, in Official Journal of the European Union L 149, of 12 June 2009. - Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, in Official Journal of the European Union L 149, of 12 June 2009 and L 251, of 21 September 2013, on the designation of its competent authorities for the purposes of Annexes and I of Implementing Regulation 1142/2011. - Council Regulation 664/2009, of 7 July 2009, establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations, in Official Journal of the European Union L 200, of 31 July 2009. - Council Decision of 9 June 2011 on the approval, on behalf of the European Union, of the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, in Official Journal of the European Union L 192, of 22 July 2011. Proposal of modification of Annex II and III of this Decision in document COM 2013)35 final, of 29 January 2013. ANNE I: Abbreviations and descriptions of the different Conventions and instruments To facilitate and simplify the reference to the different Conventions and instruments throughout this presentation, the following abbreviations and descriptions are included, as they appeared, in general, in A. Borrás J. Degeling, Explanatory Report on the 2007 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, The Hague, 2013, pp. 53-56. Some additional information has been included and up-dated at 10 November 2013. 1956 New York Convention New York Convention of 20 June 1956 on the Recovery Abroad of Maintenance. It is the first Convention in which a system of co-operation of authorities is established. It is not a Convention on enforcement and it can be applied in combination with the 1958 Hague Maintenance Convention or with the 1973 Hague Maintenance Convention (Enforcement). UN Convention on the Rights of the Child New York Convention of 20 November 1989 on the Rights of the Child. Article 2 of the Convention establishes that the Parties shall respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind. Article 27 refers specifically to maintenance obligations. 1956 Hague Maintenance Convention Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children. A great majority
4 of States Party to this Convention are also Parties to the 1973 Hague Maintenance Convention (Applicable Law). 1958 Hague Maintenance Convention Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children. A great majority of States Party to this Convention are also Parties to the 1973 Hague Maintenance Convention (Enforcement). 1973 Hague Maintenance Convention (Applicable Law) Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations. According to Article 1, the Convention applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity, including a maintenance obligation in respect of a child who is not legitimate. The law designated by the Convention (Art. 3) shall apply irrespective of any requirement of reciprocity and whether or not it is the law of a Contracting State. 1973 Hague Maintenance Convention (Enforcement) Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. Article 1 of the Convention defines the scope of application as does the Hague Convention of the same date on applicable law. Verwilghen Report Explanatory Report on the 1973 Hague Maintenance Conventions, by Michel Verwilghen (1975). 1996 Hague Child Protection Convention Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. Article 4 e) excludes maintenance obligations from the scope of application of the Convention, an exclusion that is considered as necessary, taking into account the existence of other Hague Conventions and the existing rules in Brussels and Lugano Conventions. Brussels Convention Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. It was opened for signature in Brussels, Belgium, on 27 September 1968. The original Parties were the six original Member States of what was the European Economic Community. As new States have joined the European Union, as it is now called, they have become Parties to the Brussels Convention. It now applies only between the fourteen old European Union Member States and the Netherlands Antilles and French overseas territories. Maintenance obligations are included in the Convention and the Convention includes a special rule on jurisdiction (Art. 5(2)). Lugano Convention Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters. It was opened for signature in Lugano, Switzerland, on 16 September 1988. It contains similar provisions to the Brussels Convention (it is also called the Parallel Convention). The Contracting States to the Lugano Convention are the 15 States which were Members of the European Community on 16 September 1988 and Iceland, Norway, Poland and Switzerland. The demarcation between the Brussels and Lugano Conventions is laid down in Article 54 B of the Lugano Convention. It is based on the principle that the Lugano Convention will not apply to relations among the European Union Member States, but will apply where one of the other countries mentioned above is involved. As in the Brussels Convention, maintenance obligations are included in the Lugano Convention. A new revised Lugano Convention was concluded on
5 30 October 2007. The text, as adopted in March 2007, maintains the same rule on maintenance obligations as the Convention of 1988. This new Lugano Convention apply between the Member States of the European Union and Iceland, Norway and Switzerland. Brussels II Regulation Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses. Brussels IIa Regulation (or Brussels II bis Regulation) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. EEO Regulation Council Regulation (EC) No 805/2004 creates a European Enforcement Order for uncontested claims, which means (Art. 5) that a decision which has been certified as a European Enforcement Order in the Member State of origin shall be recognized and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition. The EEO Regulation, just as the Brussels I Regulation, also includes maintenance. The 2007 Hague Convention Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance. In force for Albania, Bosnia and Herzegovina, Norway and Ukraine. Signed by the European Union, the United Stated of America and Burkina Faso.. The Borrás-Degeling Report - Explanatory Report prepared by Alegría Borrás & Jennifer Degeling, with the assistance of William Duncan and Philippe Lortie, to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (the 2007 Hague Convention), The Hague, 2013. The 2007 Hague Protocol Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. Concluded by the European Union and by Serbia, entered into force on 1 st August 2013. The European Union applied the Protocol provisionally from 18 June 2011. In the moment of the conclusion (Official Journal L 331, of 16 December 2009), the European Union made the following declaration: The European Community declares, in accordance with Article 24 of the Protocol, that it exercises competence over all the matters governed by the Protocol. Its Member States shall be bound by the Protocol by virtue of its conclusion by the European Community. For the purpose of this declaration, the term "European Community" does not include Denmark, by virtue of Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and the United Kingdom, by virtue of Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community. The European Community declares that it will apply the rules of the Protocol provisionally from 18 June 2011, the date of application of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, if the Protocol has not entered into force on that date in accordance with Article 25(1) thereof. The European Community declares that it will apply the rules of the Protocol also to maintenance claimed in one of its Member States relating to a period prior to the entry into force or the provisional application of the Protocol in the Community in situations where, under
6 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, proceedings are instituted, court settlements are approved or concluded and authentic instruments are established as from 18 June 2011, the date of application of the said Regulation. The Bonomi Report Explanatory report drawn up by Andrea Bonomi Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (The 2007 Hague Protocol). Maintenance Regulation Council Regulation (EC) No 4/2009, of 18 December 2008, on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations, published in the Official Journal of the European Union L 7, of 10 January 2009. According to its Article 76, the Regulation shall apply from 18 June 2011, subject to the 2007 Hague Protocol being applicable in the Community by that date. Failing that, this Regulation shall apply from the date of application of that Protocol in the Community. Montevideo Convention Inter-American Convention on support obligations, adopted in Montevideo, on 15 July 1989. The States Parties to the Convention are Argentina, Belize, Bolivia, Brazil, Costa Rica, Ecuador, Guatemala, Mexico, Panama, Paraguay and Uruguay (see Annex 2 of the Duncan Report). REMO The Commonwealth scheme for recognition and enforcement of maintenance orders including provisional orders is embraced by most of the States of the Commonwealth including by the territorial units of these States, e.g., Canadian provinces and territories and overseas dependant territories of the United Kingdom. Such bilateral agreements are negotiated between these jurisdictions and sometimes with third States such as Austria, Germany, Norway or the states of the United States of America. UIFSA The Uniform Interstate Family Support Act (USA) of 1996. Developed by the National Conference of Commissioners on Uniform State Laws to provide for a uniform process of establishment and enforcement of child support obligations, across state lines. Enacted by all individual states within the United States of America. Amended in 2001 and 2008.
7 ANNE II: Matters included in the different Conventions and instruments Instruments including maintenance Jurisdiction Applicable Law Matters Recognition and enforcement Cooperation New York Convention 1956 Hague Convention 1956 Hague Convention 1958 Hague Convention 1973 (Ley aplicable) Hague Convention 1973 (Exequatur) Brussels Convention 1968 Lugano Convention 1988 Regulation 44/2001(Brussels I) EEO Regulation (805/2004) Lugano Convention revised 2007 Hague Convention 2007 Hague Protocol 2007 Regulation 4/2009