Cross-border recovery of maintenance in Europe

The 2007 Hague Convention offers two different procedures which States can choose to apply (see Article 24(1), Article 63 (1)):

• the standard procedure regulated in Article 23 which is applicable unless the Contracting State has made a declaration to apply the alternative procedure and
• the alternative procedure in accordance with Article 24 which is only applicable if the Contracting State has made a declaration to use this procedure.

The first option is the one that was supported by a great majority of delegations in the negotiations and was therefore set as standard procedure.

This procedure follows a similar logic as the one set forth in Section 2 of Chapter IV of the Maintenance Regulation. Upon application, the competent authority in the State of enforcement has to, without delay, declare the decision enforceable (or register the decision for enforcement) (see Article 23(3) of the Convention). Similar to Section 2 of the Maintenance Regulation, at this stage neither party is entitled to make any submissions (Article 23(4) of the Convention); they can only do so once notified of the declaration of enforceability (or registration of the decision for enforcement) or its refusal. In contrast to Section 2 of the Maintenance Regulation, the competent authority may under the 2007 Hague Convention refuse the declaration of enforceability (or registration of the decision) if the recognition and enforcement of the decision is manifestly incompatible with the public policy of the State of enforcement. Even though the latter is also a reason for refusing recognition under Section 2 of the Maintenance Regulation, it can in accordance with the Regulation only be invoked at the appeal stage following the issuing of the declaration of enforceability.

A challenge or appeal regarding the issuing or refusal of the declaration of enforceability (or registration of the decision for enforcement) can be brought under the 2007 Hague Convention within 30 days of notification (for a non-resident party within 60 days, see Article 23(6)). The reasons a challenge or appeal can be based on are listed in Article 23(7) and include jurisdictional issues (see Article 23(7) referring to Article 22 f) and Article 20). When comparing the list of grounds a challenge or appeal can be based on in accordance with the 2007 Hague Convention with those in Section 2 of the Maintenance Regulation, it shows that the European Union was even with regard to Member States not bound by the 2007 Hague Protocol able to go a few steps further towards a simplification of the recognition and enforcement process in comparison to what was possible on the international level. Nonetheless, since, in many maintenance cases, the enforcement of a decision remains uncontested by the debtor, the speedy issuing of a declaration of enforceability (or registration of the decision for enforcement) as guaranteed by Article 23 of the 2007 Hague Convention will accelerate the recognition and enforcement. Also the 2007 Hague Convention obliges the competent authorities to act expeditiously with regard to any decision on recognition and enforcement (Article 23(11)). See for further details Article 23 of the 2007 Hague Convention as well as the Borrás/Degeling – Explanatory Report on the 2007 Hague Convention at paras 490 et seq.

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The alternative procedure regulated in Article 24 of the 2007 Hague Convention was included in the Convention to accommodate legal systems which „employ a single-stage procedure, not involving a separate registration or declaration of enforceability, but rather a single application to the court for enforcement of a foreign decision“ . The alternative procedure only applies for those Contracting State, which have made a declaration in accordance with Article 24(1) and Article 63 of the Convention.

According to the alternative procedure, the competent authority decides on an application for recognition and enforcement in a one stage procedure after having notified the respondent and having given both parties an adequate opportunity to be heard (Article 24(3)). Article 24(4) provides for a limited ex officio review of grounds for refusing recognition and enforcement (besides Article 22 a) (public policy) which can also be reviewed ex officio in the first stage of the standard procedure of Article 23 also the grounds in Article 22 c) and d) can be reviewed ex officio in the alternative procedure of Article 24).

A review of further grounds for refusing recognition and enforcement is possible if raised by the respondent or if concerns arise from the face of the documents submitted in accordance with Article 25 (Article 24(4)).

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