Cross-border recovery of maintenance in Europe

The rules for recognition and enforcement of maintenance decisions contained in Chapter IV, Section 2 of the Regulation (Articles 23-38) apply to decisions given in a European Union Member State not bound by the 2007 Hague Protocol.

This Section currently applies to decisions given in the United Kingdom and its content is equally applicable to decisions given in Denmark.

Even though the exequatur is not abolished for decisions given in a Member State not bound by the 2007 Hague Protocol, the recognition and enforcement of decisions in accordance with Section 2 is a swift process. Section 2 follows roughly the same lines as the rules on recognition and enforcement of decisions under the Brussels I Regulation but introduces a further simplification and acceleration of recognition and enforcement in comparison to the Brussels I rules.

According to Article 23 of the Maintenance Regulation (which equals Article 33 Brussels I Regulation), decisions given in a Member State (not bound by the 2007 Hague Protocol) are recognised in another Member State without any special procedure being required. However, any interested person who raises the recognition of a decision as the principal issue in a dispute can “apply for a decision that the decision be recognised”, Article 23(2). If the enforceability of the decision is suspended in the Member State of origin by reason of an appeal, the court of a Member State in which recognition is sought will stay the recognition proceedings, Article 25 of the Maintenance Regulation.

As concerns the enforcement of a decision given in a Member State not bound by the 2007 Hague Protocol in another Member State, a declaration of enforceability is required. Any interested party can apply with the competent authority (Article 27 Maintenance Regulation) in the Member State of enforcement for such a declaration of enforceability, if the decision concerned is enforceable in the State of origin, Article 26 of the Maintenance Regulation (reproducing Article 38(1) Brussels I Regulation). Article 28 of the Maintenance Regulation lists the documents, which need to accompany an application for a declaration of enforceability. As for Section 1, a multilingual form has been created for the enforcement under Section 2 in order to simplify the exchange of decision related information relevant for the enforcement among the authorities in the different Member States. The form in Annex II of the Regulation is to be issued by the court of origin (see Article 28(1) b), but see also Article 29 for dispense with this obligation).

The declaration of enforceability is to be issued immediately on completion of the formalities without any review of the grounds of refusal of recognition set forth by Article 24 of the Maintenance Regulation. The party against whom enforcement is sought is, at this stage, not entitled to make any submission, Article 30 of the Maintenance Regulation (similar to Article 41 Brussels I Regulation). In contrast to the Brussels I Regulation, the Maintenance Regulation specifies a time period within which the declaration of enforceability has to be issues, which is: “30 days of the completion of those formalities, [unless] exceptional circumstances make this impossible”, Article 30 of the Maintenance Regulation.

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In accordance with Article 31 of the Maintenance Regulation, the decision on the application for a declaration of enforceability needs to be “forthwith […] brought to the notice of the applicant in accordance with the procedure laid down by the law of the Member State of enforcement”. Also, the declaration of enforceability has to be “served on the party against whom enforcement is sought, accompanied by the decision, if not already served on that party” (see Article 42 Brussels I Regulation).

Only at this stage, can the parties make interventions. According to Article 32 of the Maintenance Regulation, either party may appeal the decision on the declaration of enforceability with the competent court in the State of enforcement (see for the competent court the notifications of Member States in accordance with Article 71). The appeal needs to be brought within the timeframes specified in Article 32(3) of the Maintenance Regulation (which are slightly shorter than those referred to by Article 43(5) of the Brussels I Regulation). The appeal will be dealt with “in accordance with the rules governing procedure in contradictory matters”, Article 32(3) of the Maintenance Regulation. If in the appeal proceedings brought by the applicant, the party against whom enforcement is sought fails to appear before the court, Article 11 of the Maintenance Regulation (see the Chapter on Jurisdiction) applies, Article 32(4) of the Maintenance Regulation.

The refusal or revocation of a declaration of enforceability in appeal proceedings can only be based on one of the grounds for refusing recognition specified in Article 24 of the Maintenance Regulation, see Article 34 of the Maintenance Regulation. In contrast to the Brussels I Regulation, the refusal of the recognition of a judgement cannot be based on jurisdictional issues (Section 2 of the Maintenance Regulation does not contain a provision equivalent to Article 35 of the Brussels I Regulation). In addition Article 24 a) of the Maintenance Regulation highlights that the public policy test “may not be applied to the rules relating to jurisdiction”. Apart from that difference, the grounds for refusing recognition in Section 2 of the Maintenance Regulation correspond generally to those mentioned in the Brussels I Regulation.
A decision is not recognised if (see Article 24 Maintenance Regulation, see already Article 34 Brussels I Regulation):

• the recognition is manifestly contrary to public policy in the Member State of enforcement
• the decision was given in default of appearance, if the defendant was not served with the necessary documents in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so
• the decision is irreconcilable with a decision given in a dispute between the same parties in the Member State of enforcement or in a third State provided that the decision is recognisable in the State of enforcement

With regard to the “irreconcilability” mentioned in Article 24, the Maintenance Regulation clarifies that a decision, “which has the effect of modifying an earlier decision on maintenance on the basis of changed circumstances shall not be considered an irreconcilable decision”.

The Maintenance Regulation introduces a timeframe within which the court seised of an appeal has to give its decision. This is, unless there are exceptional circumstances, a period of 90 days from the day the court was seised, Article 34(2) of the Maintenance Regulation. The decision given on appeal can be contested “only by the procedure notified by the Member State concerned to the Commission in accordance with Article 71”, see Article 33 of the Maintenance Regulation (see for further details also Article 34 Maintenance Regulation).

If the enforceability of the decision of which enforcement is sought is suspended in the Member State of origin due to an appeal, Article 35 of the Maintenance Regulation provides that the “court with which an appeal is lodged under Articles 32 or 33 shall, on the application of the party against whom enforcement is sought, stay the proceedings”.

It should be noted, that also a partial enforceability of a decision is possible in accordance with Article 37 of the Maintenance Regulation.

The issue of provisional measures, including protective measures is dealt with in Article 36 of the Maintenance Regulation: “When a decision must be recognised in accordance with this Section, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the Member State of enforcement without a declaration of enforceability […] being required.” Article 36 further clarifies that the declaration of enforceability carries with it by operation of law the power to proceed to any protective measures. In the time of an appeal against the declaration of enforceability only “protective measures against the property of the party against whom enforcement is sought” can be taken, Article 36(3) of the Maintenance Regulation.

Finally, Article 38 of the Maintenance Regulation obliges Member States to guarantee that in proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue will be levied.