Regulation 4/2009 Recognition and enforcement of decisions

and cooperation between central

authorities

EJTN - Seminar on Maintenance Obligations in Europe

Lisbon, 18 October 2012 Florbela Moreira Lança

Recognition, Enforceability and

Enforcement of Decisions

- EU Regulation Maintenance replaces Brussels I, relating to maintenance (article 68 , 1, and recital 44) and

Regulation 805/2004, in matters relating to maintenance obligations, execept with regard to European Enforcement Orders on maintennace obligations issued in a Member Stated not bound by the 207 Hague Protocol (article 68, 2);

What’s “Maintenance” for the purpose of enforcement under this Regulation ?

Regulation doesn’ t give a definition of “Maintenance”(see European case law, v.g. Van den Boogaard v Laumen (1997)).

Aim of Maintenance Regulation: specially, to simplify and speed up the enforcement of maintenance orders between EU MS, facilitating cross-border recovery of maintenance claims.

How ?

- Regulation abolishes the exequatur (decisions given in a MS bound by the 2007 Hague Protocol).

- Creates a system of an effective and efficient administrative co-operation between CA of the MS. Each MS appointed a CA who will cooperate with each other in order to facilitate the operation of the Regulation

Recognition, Enforceability and

Enforcement of Decisions

Article 16

• Section I (articles 17-22) applies to decisions given in a MS bound by the 2007 Hague Protocol ;

• Section II (articles 23-38) applies to decisions given in a MS not bound by the Hague Protocol;

• Section 3 (articles 39-43) applies to all decisions

Decisions given in a Member State bound by the

2007 Hague Protocol

1. Abolition of exequatur (article 17)

• The process of exequatur is abolished under this Regulation in

relation to decisions given in those MS bound by the 2007 Hague

Protocol.

• There are no grounds for refusing to recognize the decision: A

decision given in a MS bound by the 2007 Hague Protocol shall be

recognised in another MS without any special procedure being

required and without any possibility of oposing recognition .

2. Protective Measures (article 18)

Decisions given in a Member State bound by the

2007 Hague Protocol

3. Right to apply for a review (article 19)

• Right of the defendant who did not enter an appearance in the MS of origin to apply for review of the decision before the competent court of that MS where:

a) he was not served with the document in sufficient time and in such a way as to enable him to arrange is defence ; or

b) he was prevented from contesting the maintenance claim by reason of force majeure or due to extraodinary circumstances without any fault on his part.

This right to a review is subject to strict time restrictions and should be considered an extraordinary remedy (recital 29).

If its is decided that the review is jsutifoied, the given decision is null and void but the creditor does not lose the benefits of the interruption of prescription or limitationperiods or teh right to claim retroactive maintenance acquired in the initial proceedings.

4. Documents for the purposes of enforcement (article 20)

• Copy of the decision with the conditions necessary to establish its authenticity, extract from the decision using the form set out in Annex I, and

• Where appropriate a document showing the amount of any arrears and the date such amount was calculated

5. Total or parcial Refusal or suspension of enforcement (article 21) By the competent authority in the MS State of enforcement always on application by the debtor:

A) Refusal

• Prescription of the right to enforce the decision either under the law of the MS of origin or under the law of the MS of enforcement, whichever provides for the longer limitation period (article 19, 2, 1);

• Irreconcilable decision of the court of origin with a decision given in the MS of enforcement or with a decision given in another MS or in a third State wich fulfils the conditions necessary for its recognition in the MS of enforcement (article 19, 2, 2);

B) Suspension

• Application for a review by the debtor, in accordance with article 19 (article 19, 3);

• Any other reason foreseen in the law of the MS of origin that permits the suspension of the enforceability of the decision.

Decisions given in a Member State bound by the

2007 Hague Protocol

Decisions given in MS not bound by the

2007 Hague Protocol

UK and Denmark did not addopted the 2007 Hague Protocol and

Denmark has only adopted the Maintenance Regulation insofar as it

amends Brussels I (see OJ 12.06.2009 L 149/80)

1. Recognition (article 23)

• A decision given in a MS not bound by the 2007 Hague Protocol

shall be recognised in the other MSs without any special procedure

being required.

• But….

• There are grounds of refusal of recognition:

Decisions given in MS not bound by the

2007 Hague Protocol

1.2 Grounds of refusal of recognition (article 24) • Public Policy

• Default of appearance of the defendant

• Decision irreconcilable with a decision given in a dispute between the same parties in the MS in which recognition is sought;

• Decision irreconcilable with an earlier decision given in another MS or in a third State in a dispute involving the same cause of action and between the same parties, provided that the earlier decision fulfills the conditions necessary for its recognition in the MS in which recognition is sought;

1.3 Suspension of recognition proceedings (article 25) • Ex officio

• Ground: The enforceabilty of the decision is suspended in the MS of origin by reason of an appeal.

Decisions given in MS not bound by the

2007 Hague Protocol

2. Enforceability (article 26) • Decison given in a MS not bound by the 2007 Hague Protocol and

enforceable in that MS shall be enforceable in another MS on application of any interested party.

2.1. Jurisdiction (article 27) • Application shall be submitted to the court or competent authority of the

MS of enforcement notified to the Commission in accordance with article 71.

2.2 Procedure and documents (articles 28 and 29) • Copy of the decision satisfying the conditions necessary to establih its

authenticity + extract from the decision issued by the court of origin using Annex II (not of the decision). If necessary translation of the contents of that Annex into the official language of the MS of enforcement.

• Translation is only required in case of appeals (see articles 32 and 33) or in the circumstances foreseen in article 29

Decisions given in MS not bound by the

2007 Hague Protocol

2.3. Declaration of enforceability (article 30) • Accomplishment of article 28 without any review under article 24 and without

possibility of any submissions on the application by the party against whom enforcement is sought.

2.4. Appeal (article 32-35) • Appeal shall be lodged with the Court notified by the MS concerned to the

Commission according to article 71.

• Rules - the appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters;

• Appeal shall be lodged within 30 days of service or 45 days if the party against whom enforcement is sought has his habitual residence in a MS other than in which the declaration of enforceability was given.

• Decision given on appeal may be contested only by the procedure notified by the MS in accordance with article 71

• Refusal or revocation of a declaration of enforceability –The court with which an appeal is lodged under articles 32 or 33 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in article 24

• Suspension – The court with which an appeal is lodged shall , only on application of the party against whom enforcement is sought, stay the proceedings if the enforceability of the decision is suspended in the MS of origin by reason of an appeal.

Decisions given in MS not bound by the

2007 Hague Protocol

3. Provisional/Protective measures (articles 36 and 37)

4. No charge, duty or fee in proceedings for the issue of a declaration

of enforceability may be levied in the MS of enforcement (article 38).

Att: Article 68, 2 preserves the European Enforcement Order

for uncontested claims (Regulation 805/2004 of 21 April 2004) on

maintenance obligations issued in a Member State not bound by

the 2007 Hague Protocol, i.e., this Regulation could continue to be

used for the immediate recognition of uncontested maintenance

orders.

Common provisions (articles 39-43)

1. Provisional enforceability (article 39)

• The court of origin may declare the decision provisionally

enforceable, notwithstanding any appeal, even national law does

not provide for enforceability by operation of law.

2. Documents need to invoke in another MS a

decison recognised (article 40)

3. Proceedings and conditions for enforcement

(article 41)

• Procedure for enforcement of decisions given in another MS will be

under the law of the MS of enforcement.

4. No review at substance (article 42)

5. No precedence for the recovery of costs (article

43). The recovery of any costs incurred in the application

of the Maintenance Regulation shall not take precedence

over ther recovery of maintenance.

Cooperation between Central Authorities

(articles 49-63) 1. Designation and communication to the Commission (articles 49 and 71)

2. Functions (articles 50 and 51)

• Central Authorities will assist individuals in relation to applications under the Regulation, namely with regard to the trensmission and receipt of applications including for the initiation of related proceedings for the establishment or modification of maintennace and for the enforcement of a maintenace decision.

• General functions (article 50)

• cooperate with each other, seek solutions to difficulties arised in the application of the Regulation, facilitate the application of the Regulation and strenght their cooperation using the European Judicial Network in Civil and Commercial Matters.

• Specific Functions (article 51)

3. Requests for specific measures made by a CA to another CA (article 53. See 51.2 and 56).

Cooperation between Central Authorities

(articles 49-63)

4. Power of attorney (article 52)

• May be required by the requested CA only if it acts on

his behalf in judicial proceedings or before other

authorities or in order to designate a representative so

to act.

5. CA costs (article 54)

• Each CA shall bear its own costs in applying the

Regulation

Cooperation between Central Authorities

(articles 49-63)

6. Requests (article 55-59) • 6.1. Application made through the CA of the MS in which the applicant reside to the

CA of the requested MS (article 55), in accordance with the law and rules of

jurisdiction applicable in the requested MS (article 56, 4).

• 6.2. Applications made by the creditor (article 56, 1) in order to obtain a decision, a

modification of a decision or recognition, recognition and declaration of

enforceability or enforcement of a decision given or recognized in the requested

MS;

• 6.3. Applications made by the debtor (article 56, 2) for recognition of a decision

leading to the suspension or limiting the enforcement of a previous decision or

modification of a decision.

• 6.4 Contents of the application (article 57)- Annex VI or Annex VII

• 6.5. Transmission, receipt and processing of applications and cases through CA

(article 58) - CA of the requesting MS transmits the application to the CA of the

requested MS. This CA, within 30 days, acknowledge receipt of the application,

inform the requesting CA what initial steps have been or will be taken and the name

and contact details of the person or unit responsible for responding to inquiries

related to the application. Within 60 days from the date of acknowledgement the

requested CA inform the requesting CA of the status of application

Cooperation between Central Authorities

(articles 49-63)

6. Languages (article 59)

• Requests of application: official language of the

requested MS or any other official language of EU

institutions that the requested MS has indicated it can

accept

• Documents accompanying the request or application:

Should be translated only if it is necessary in order to provide

the assistance requested, without prejudice articles 20, 28 , 40 and 66.

Meetings (article 60)

CA shall meet regularly, bringing more efficiency in their cooperation and facilitating the solution of pratical problems

Access to information (article 61)

CA shall be cautious and respect rules on data protection. They have will have access to information relating the debtor’s income, assets and other financial circumstances of the debtor. This information shall be adequate, relevant and not excessive (article 60, 2)

Portuguese CA Data

I

Portuguese CA Data

II

2011*

Requests Pending EndedAverage time

daysPending Ended

Average time

days

Prior information 2 1 1 22 0 0 -

Article 51, paragraph 2

Location of the debtor - subparagraph b) 8 0 1 274 0 7 199

Article 56, paragraph 1

Enforcement of a decision - subparagraph b) 52 49 2 190 0 1 32

Total 62 50 4 - 0 8 -

*A partir de 18-06-2011

2012

Requests Pending EndedAverage time

daysPending Ended

Average time

days

Prior information 9 4 3 106 1 1 91

Artigo 51, paragraph 2

Location of the debtor - subparagraph b) 17 4 1 21 6 6 85

Info on debtor's income - subparagraph c) 6 2 3 86 1 0 -

Artigo 56, paragraph 1

Recognition of a decision - subparagraph a) 1 0 0 - 1 0 -

Enforcement of a decision - subparagraph b) 125 97 1 147 26 1 138

Establishment of a decision - subparagraph c) 8 1 0 - 7 0 -

Modification of a decision - subparagraph e) 3 0 0 - 2 1 153

Total 169 108 8 - 44 9 -

Received

Received

PT REQUESTING PT REQUESTED

PT REQUESTING PT REQUESTED

Portuguese CA Data

III

Case Study I

A father, english

B mother, german

C, son, english

A and B got divorced, in August 2011, in England, where they lived.

B and C moved to Belgium.

English Court gave a decision, ordered that A has to pay monthly 300, 00 euros as maintenance to C.

A works and have all his properties in Germany.

A doesn’t pay the maintenance obligation.

B wants to enforce the decision.

a) Should B enforce the decision in Belgium ? Why?

b) Which proceedings, if any, requires that enforcement ?

Case Study I1

A - mother, French

B - father, Spanish

C - daugther, French

A and B got divorced, in October 2011, in Spain, where they lived. A and C

move to France. B lives in Spain.

According to a decision given by the Spanish Court B has to pay monthly €

300,00 as maintenance of his daughter.

A wants to enforce that decision but she doesn’t know if B is working and

she does’nt know if B has any properties.

What should A do ?

Any special procedure is required to enforce the Spanish decision ?

Imagine B has been not properly served as far as maintenance claim is

concerned.

What can B do ?

Thank you for your attention.