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Green Paper on maintenance obligations
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.
Commission Green Paper of 15 April 2004 on maintenance obligations [COM(2004) 254 final – Not published in the Official Journal].
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.
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.
- European Commission, Directorate-General (DG) Justice, Freedom and Security: judicial cooperation in civil and commercial matters
- European Judicial Network in civil and commercial matters
- The Hague Conference on Private International Law: conventions