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Last update: 27-02-2008
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Maintenance claims - Community law

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“I can't get someone in another Member State to pay my maintenance.”

In order to compel someone in another Member State to pay maintenance, you must use the courts of the State in which you want to have your judgment enforced. Rules of Community law already exist, they can help you to claim your maintenance in a Member State other than your State of residence. These rules will soon be improved.

  • Council Regulation (EC) No 44/2001 of 22 December 2001 on jurisdiction and enforcement of judgments in civil and commercial matters (Brussels I) lays down rules on special jurisdiction for the courts concerning maintenance payments. This Regulation has been directly applicable since 1 March 2002, which means that its provisions can be relied on in a court action. But they do not apply to Denmark, where the Brussels Convention of 27 September 1968 on the same subject matter still applies.

According to the Brussels I Regulation, the maintenance creditor can choose to bring a case, either to the court of the Member State where the debtor has his domicile, or the court where the creditor himself has his domicile or habitual residence. The creditor is therefore in a favourable position. On the other hand, when the debtor takes the initiative to act, he is submitted to the general rule and has only one possibility, which is to bring the case to the court where the creditor is living.

Moreover, if the matter is ancillary to proceedings concerning the "status of a person" (divorce for example), it will be heard by the court which, according to its own law, has jurisdiction, unless that jurisdiction is based solely on the nationality of one of the parties.

A judgment concerning maintenance given in a Member State will be recognised in other Member States (Article 33 of the Regulation) and will be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there (Article 38).

As compared to the 1968 Brussels Convention, which it supersedes, the Regulation (Article 34) now rules out refusal to recognise a judgment contrary to the private international law of the State in which recognition is sought, if the judgment of the original court determines an issue of the status or capacity of persons. A foreign judgment can now be refused recognition only if it is contrary to public policy, if it is irreconcilable with an earlier judgment or if the defendant was not served with the document instituting the proceedings within the prescribed time limits.

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Lastly, arrangements relating to maintenance obligations concluded with administrative authorities or authenticated by them are regarded as authentic instruments qualifying for the simplified enforcement procedure (Article 57).

Although that procedure may seem relatively straightforward, the Regulation does not remove all obstacles to the "free movement of judgments" within the European Union and leaves intermediate measures in place that are still too restrictive.

  • The Tampere European Council in October 1999 called for a further reduction in the legal steps necessary before foreign judgments can be enforced. In November 2000, the Council adopted a Programme for the mutual recognition of court judgments. The ultimate objective is to abolish the requirement, in civil and commercial matters, that the court declare a foreign judgment enforceable ("issue an exequatur"). In this perspective, maintenance claims are clearly a major priority.
  • Subsequently, on 21 April 2004 the European Parliament and the Council adopted Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims. It covers claims for maintenance payments, but only where these are considered to be uncontested.
  • In order to cover the whole range of problems linked to the recovery of maintenance claims, the Commission published a Green Paper in April 2004.
  • On 15 December 2005 the Commission presented to the Council a proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. 

The aim of this proposal is to remove all remaining obstacles to the collection of maintenance payments within the European Union. If adopted, it will enable the creation of a legal environment adapted to the legitimate expectations of maintenance creditors. Maintenance creditors will then be able to obtain enforceable decisions that "travel freely" throughout the European Judicial Area and result in regular maintenance payments. This should be easy, quick and, as a rule, free of charge.

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This new European legal order calls for more than just fine-tuning existing arrangements. That is why the Commission proposes to take ambitious measures in all relevant areas of civil judicial cooperation: international jurisdiction, applicable law, recognition and enforcement, cooperation and lifting all obstacles to the proper conduct of legal proceedings. These overall solutions will be grouped into one single legal instrument.

  • The proposal for a Regulation has three main objectives:
  1. To make life easier for European citizens by reducing the formalities involved in obtaining and enforcing court orders in any Member State, and by introducing measures specifically aimed at assisting maintenance creditors. It should be possible to take all the necessary steps at the place of normal residence, including measures at the enforcement stage itself, such as the possibility of obtaining attachment on wages or on a bank account, to trigger the cooperation mechanisms or to have access to information making it possible to locate the debtor and to evaluate his assets.
  2. To increase legal security by harmonising divergent conflict-of-laws rules.
  3. To ensure effective and durable collection of maintenance payments by offering the creditor the possibility of obtaining a court order that has effect in the entire European Union, backed up by a simple and harmonised system to have it enforced.
  • The proposal for a regulation has been submitted to the Council under the procedure of the first indent of Article 67(2) of the Treaty establishing the European Community, which means that the Council must consult the European Parliament and then take a unanimous decision. According the treaty in force, the proposal cannot be adopted under the co-decision procedure because it concerns family law. Given the very close links between maintenance obligations and family law, this is the only legal interpretation possible. But it is inconvenient for three reasons:
    • it does not take sufficient account of the fact that maintenance obligations are hybrid phenomenon; they are the result of a family relationship, but they are implemented financially, just like any other debt;
    • it does not take account of the fact that the European legislative has hitherto always considered that maintenance obligations can fall under the ordinary rules (see the Brussels I Regulation, which excludes family law but does apply to maintenance obligations, or the Regulation creating a European Enforcement Order for uncontested claims, which applies to maintenance obligations and was adopted by the co-decision procedure)
    • it does not enable the European Parliament to fulfil its role.

The Commission has accordingly issued a Communication calling on the Council to transfer maintenance obligations from the unanimity procedure to the co-decision procedure (second indent of Article 67(2) of the Treaty).

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  • All this will be backed up by efficient cooperation between the competent authorities of the Member States.

All Member States (except Latvia, Lithuania and Malta) have ratified the United Nations New York Convention français of 20 June 1956 on the recovery abroad of maintenance, which establishes procedures for international administrative cooperation.

Some Member States have also signed the four Conventions of the Hague Conference on Private International Law that are applicable to maintenance obligations (see International law on this topic).

Background Documents

« Maintenance claims - General information | Community law - General information »

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Last update: 27-02-2008

 
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