Brussels, 23 April 2004
Green Paper on maintenance obligations: Commission seeks views of interested parties
The European Commission has prepared a discussion document (Green Paper) on the cross-border recovery of maintenance obligations (e.g. child support payable by parents not residing with the child). Its purpose is to sound out all those concerned on the various issues involved before the hearing scheduled for 2 June in Brussels takes place and before the second stage of negotiations begin the following week at the Hague Conference on Private International Law. The Commission intends shortly to unveil a Community legislative proposal setting out the rules applicable between EU Member States. As for the Hague Conference, the Commission is making preparations for a convention with a view to bringing up to date the existing regime (comprising several international conventions and various regional or bilateral agreements) so that it could apply in particular between the EU Member States and third countries.
The recovery of maintenance claims poses numerous difficulties and, in some cases, close on 50% of such claims are not recovered within a particular country.
These difficulties are aggravated in cases where the person required to make the maintenance payments and the person entitled to receive them do not reside in the same country. Given the way in which family structures have changed in recent years, this problem has now assumed disturbing proportions. It would appear that thousands, or indeed tens of thousands, of people are concerned throughout Europe.
The Commission Green Paper on maintenance obligations is designed to take stock of all the problems relating to maintenance payments:
- Court having jurisdiction: Determination of the court having jurisdiction to decide whether to grant or to modify maintenance, which is governed by Community legislation, poses difficulties at international level. Since different countries apply different solutions, the courts in two different countries may regard themselves as having jurisdiction to handle one and the same case and may deliver contradictory decisions or, then again, no court may accept jurisdiction or, under certain systems, two successive decisions may be needed, the first in the country of the creditor and the second in the country of the debtor, but one of the two countries may not accept this solution.
- Recognition of judgments: As regards the recognition of judgments, which is facilitated throughout the European law-enforcement area by the "Brussels I" Regulation, the situation is more difficult at international level since, in view of the characteristics of certain legal systems, some decisions are not recognised or executed in other countries.
- Applicable law: The question as to the law to be applied by the court delivering a judgment also raises certain difficulties. It is not currently governed by Community legislation but by conventions adopted at The Hague but ratified by only a few countries. The rights assigned by the law in different countries differ very widely. In some of them, only children qualify for support payments whereas, in others, relatives in the ascending line and brothers and sisters may request that their "near ones" be required to assist them when they are in need. To dispel the uncertainties, it might be expedient to lay down criteria for defining which law will be applicable to a given situation.
- Cooperation between States: The treatment of individual cases requires cooperation between States. Even where procedures have been simplified, individuals receiving maintenance and who are, by definition, destitute cannot be expected to instigate proceedings abroad to obtain payment of the sums due to them. Cooperation is already provided for by the UN Convention, to which all EU Member States and a large number of third countries are party, but in many cases it is ineffective. Clearly defined obligations must be imposed on States: location of the debtor in cases where the person seeking maintenance does not know his/her address, identification of his/her assets, initiation of enforcement proceedings in cases where the debtor refuses to pay spontaneously, transfer of funds, etc.
- Material assistance to individuals: It should be possible throughout the Community to provide material assistance to individuals, particularly children, who are unable to collect maintenance due to them because the debtor cannot be found or is insolvent.
The Tampere European Council in 1999 had, therefore, taken the view that the cross-border recovery of maintenance claims had to be improved and recommended that the procedures for recognising and enforcing decisions relating to such claims, already provided for in the "Brussels I" Regulation, should be further simplified.
The mutual recognition programme adopted at the end of 2000 thus recommends abolition of the exequatur procedure, i.e. the procedure whereby a judgment delivered in one State is recognised and declared enforceable in another State.
However, simplifying court procedures in the country where the debtor is resident is not sufficient on its own to facilitate recovery of maintenance due to children or to other destitute individuals awaiting such payments in order to meet their essential needs.
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