The Regulation covers cross-border maintenance applications arising from family relationships. It establishes common rules for the entire European Union (EU) aiming to ensure recovery of maintenance claims even where the debtor or creditor is in another country.
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.
This Regulation provides a series of measures aimed at facilitating the payment of maintenance claims in cross-border situations. Such claims arise from the obligation to help family members in need. For example, they may take the form of maintenance paid to a child or to a former spouse following divorce.
The Regulation applies to maintenance obligations arising from:
- a family relationship;
- marriage or affinity.
In matters relating to maintenance obligations, jurisdiction shall lie with:
- the court of the place where the defendant or the creditor is habitually resident; or
- the court which has jurisdiction to entertain proceedings regarding the status of a person (a divorce for example) or parental responsibility, if the matter concerning maintenance is related thereto (provided that jurisdiction is not based solely on the nationality of one of the parties).
Unless the dispute relates to a maintenance obligation towards a child under the age of 18, the parties may, subject to certain conditions, agree on the court or courts of a Member State which have jurisdiction to settle it.
Where the defendant makes an appearance before a court of a Member State, that court shall have jurisdiction, unless the defendant contests the jurisdiction.
If none of the conditions cited above is fulfilled, the dispute may, subject to certain conditions, be brought before the courts of a Member State of which both parties are nationals.
Failing this, if the proceedings cannot be brought in a country outside the EU with which the dispute is closely connected, the matter may be brought before the court of a Member State with which the case has sufficient connection.
As long as the creditor continues to reside in the Member State which gave the decision on maintenance obligations, the debtor may not, subject to exceptions, bring proceedings to modify the decision in another Member State. The creditor may nevertheless agree that the dispute is decided by another court.
If proceedings concerning the same parties and involving the same cause of action are brought before the courts of different Member States, jurisdiction shall lie with the court first seised.
Regardless of the court having jurisdiction as to substance, applications for provisional and protective measures may be lodged with any court of any Member State where they are provided for by the law of the State concerned.
Recognition and enforcement of decisions
A decision on maintenance obligations by one Member State is to be recognised in another Member State without any special procedure.
The vast majority of Member States are bound by the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.
Where the decision was taken by a Member State bound by the 2007 Hague Protocol, its recognition may not be opposed. If it is enforceable in the Member State in which it was taken, it is enforceable in another Member State without the need for a declaration. In certain cases, however, it is still possible to apply for a review of the decision and the refusal or suspension of its enforcement.
Where the decision was taken by a Member State not bound by the 2007 Hague Protocol, its recognition may be refused in certain cases. It may be enforced in another Member State – if it is enforceable in the Member State in which it was taken – on condition that a declaration of enforceability is obtained from the Member State of enforcement.
In all cases, the court of origin may declare a decision as provisionally enforceable. When the decision is to be enforced in a Member State other than that in which it was originally taken, enforcement is governed by the law of that Member State.
The decision taken in a Member State cannot be reviewed as to its substance in the Member State in which its recognition, enforceability or enforcement is sought.
Parties who are involved in a dispute covered by this Regulation shall have effective access to justice in another Member State, including enforcement and appeal and review procedures. In particular, Member States shall provide legal aid under certain conditions. Free legal aid shall be provided in respect of applications by creditors concerning a decision on maintenance obligations arising from a parent-child relationship towards a person under the age of 21.
Each Member State must appoint a central authority responsible for assisting parties in the establishment and recovery of maintenance. In particular, they will send and receive applications provided for under the Regulation and take all appropriate measures to introduce or facilitate the introduction of the necessary procedures.
The central authorities shall cooperate with each other, promote cooperation among the competent authorities of their Member State and seek solutions to difficulties which may arise in the application of this Regulation. Moreover, to facilitate the application of the Regulation and to strengthen cooperation between the central authorities, use shall be made of the European Judicial Network in civil and commercial matters.
This Regulation replaces the provisions concerning maintenance obligations of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It also replaces Regulation (EC) No 805/2004 creating a European enforcement order for uncontested claims, except for European enforcement orders concerning maintenance obligations issued by Member States that are not bound by the 2007 Hague Protocol.
This Regulation has been applicable since 18 June 2011.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
Regulation (EC) No 4/2009
OJ L 7 of 10.1.2009