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Green Paper on maintenance obligations

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The European Union (EU) wishes to standardise legislation and procedures concerning maintenance obligations. To this end, the Commission has adopted a green paper that looks at the problem of settling cross-border disputes in this area. It launches a debate on how to develop Community law on the basis of current developments in international private law.

ACT

Commission Green Paper of 15 April 2004 on maintenance obligations [COM(2004) 254 final – Not published in the Official Journal].

SUMMARY

Under international private law, disputes relating to maintenance obligations * are mainly governed by the Hague Conventions. These conventions lay down the conflict-of-law rules that determine the law applicable to the settlement of an international dispute, as well as the rules on the recognition and enforcement of judgments. However, these provisions are incomplete, they lack uniformity and they are binding only on the signatory states.

Under current Community law, maintenance obligations are governed by Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This regulation lays down rules that are favourable towards maintenance creditors as regards determining the court that has jurisdiction and establishes a simplified mechanism for enforcing judgments.

Nevertheless, there remain differences between the legal systems of the European Union (EU) Member States. This is particularly detrimental to maintenance creditors. Cross-border procedures create difficulties for the mutual recognition and enforcement of court judgments.

In order to provide minimum guarantees for European citizens, the Commission has attempted to establish simplified rules of procedure. It is pursuing this objective as part of the project to construct an area of freedom, justice and security.

However, not all obstacles to the free movement of judgments have been removed by Community legislation, which means that many practical problems remain that prevent the proper settlement of maintenance claims.

The Commission is therefore presenting this green paper to launch a debate on the legal instruments applicable to maintenance obligations.

The adoption of common standards at Community level would be a step towards greater legal certainty. Thus, the green paper proposes to define the scope of a future Community legal instrument. The principal topics for discussion are:

  • unification of the rules on conflict of laws with a view to strengthening legal certainty;
  • automatic recognition of the enforceability of foreign judgments by abolishing the intermediate exequatur* procedures as the basis for effective enforcement of court judgments;
  • approximation of procedural rules and the establishment of tools to facilitate the enforcement of judgments;
  • strengthening of judicial cooperation in civil matters, both within the EU and vis-à-vis third countries.

Background

The Amsterdam Treaty provides for the establishment of an area of freedom, security and justice within the EU.

Starting from this basis, the Tampere European Council of 15-16 October 1999 adopted a programme of measures for implementing the principle of mutual recognition of decisions in civil and commercial matters. This programme sets the EU objectives for guaranteeing equal access to justice for all European citizens and freedom to exercise their rights.

Community law thus provides for mechanisms that facilitate the settlement of cross-border disputes. However, in the field of maintenance obligations, the fact that there are so many legal sources can hinder the recognition and enforcement of judgments.

Recourse to private international law must be possible in cases where one of the parties is a third-country national.

In order to standardise the texts applicable under private international law, a single convention is being drafted by the Hague Conference on Private International Law, drawing on the most effective aspects of the existing conventions. This should lead to the extension and simplification of the law applicable to maintenance obligations under private international law. The Commission will take account of the outcome of this work in its future proposals.

Key terms used in the act
  • Maintenance obligations: all maintenance payments in the context of family relationships. Essentially it means maintenance paid to children by their parents (usually following the separation of the holders of parental responsibility) and sums paid by a spouse following divorce as part of the obligation to maintain the duty of assistance.
  • Exequatur: a special procedure carried out in the Member State that recognises a judgment, before that judgment is enforced. The purpose of the procedure is to give a foreign judgment the same effects as a national judgment.

RELATED ACTS

COMMUNITY LAW

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 [Official Journal L 7 of 10.1.2009].
As a follow-up to the green paper, this regulation provides for the effective recovery of cross-border maintenance claims arising from family relationships. It establishes provisions on jurisdiction and applicable law for disputes concerning maintenance obligations. For the recognition, enforceability and enforcement of decisions on maintenance obligations, different provisions are set out for Member States regardless of whether they are bound by the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations. The regulation also provides for the access to justice of the parties involved in disputes, as well as for the designation of central authorities in Member States to assist in the application of this regulation. Finally, it replaces the provisions concerning maintenance obligations of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [OJ L 12 of 16.1.2001].
This regulation aims to replace the 1968 Brussels Convention (as amended by other conventions) with a Community instrument without changing its scope. The 1968 Convention covers all areas of civil and commercial law, except those expressly excluded from its application: the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession, bankruptcy, social security and arbitration. The regulation lays down provisions concerning general , special and some exclusive jurisdiction, as well as jurisdiction in matters relating to insurance, consumer contracts and individual contracts of employment. It also contains rules on prorogation, examination, admissibility, lis pendens and related actions, as well as provisional and protective measures. Furthermore, it contains provisions on questions related to the recognition and enforcement of judgments, authentic instruments and court settlements, general, transitional and final provisions, and relations with other instruments.

INTERNATIONAL PRIVATE LAW

Hague Protocol on the Law Applicable to Maintenance Obligations (2007).

Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (2007).

Hague Convention on the Law Applicable to Maintenance Obligations (1973).

Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations (1973).

Hague Convention Concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations Towards Children (1958).

Hague Convention on the Law Applicable to Maintenance Obligations Towards Children (1956).

New York Convention on the Recovery Abroad of Maintenance, concluded in the UN (1956).

Last updated: 02.09.2009

See also

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