Cross-border recovery of maintenance in Europe

In 1999, an analysis of the existing international maintenance instruments in the course of a Special Commission of the Hague Conference on Private International Law had revealed that the existing instruments were not / no longer operating efficiently enough and that many of the problems associated with some of these Conventions were of a chronic nature. In practise, the cross-border recovery of maintenance often remained cumbersome, slow and costly. The decision of the Hague Conference Member States in 2002 to embark on new global rules in the field of international maintenance was followed by five years of drafting and negotiations, in which the European Community, a Member of the Hague Conference in its own rights as of 2007, participated actively. The new Hague Convention adopted in November 2007 holds the promise of improving, particularly in child support cases, the international recovery of maintenance through simplified, accelerated, accessible and cost-effective procedures. Modernised applicable law rules were included in a separate Hague instrument, the 2007 Hague Protocol, developed and adopted alongside the 2007 Hague Convention.

In parallel to the negotiations in The Hague, the European Community was preparing a new European instrument on the cross-border recovery of maintenance following the objectives set forth at the Tampere Meeting of the European Council in October 1999 calling for the creation of “special common procedural rules for simplified and accelerated cross-border litigation [regarding] maintenance claims” and for a “further reduction of the intermediate measures […] required to enable the recognition and enforcement of a decision” (see Conclusions 30 ad 34, Tampere Meeting; see also Recital 4 of the Maintenance Regulation). In accordance with the Tampere programme, the European Community aimed to abolish the exequatur for maintenance decisions within the European Union, i.e. envisaged an instrument that would make an enforceable decisions from one Member State automatically recognised and enforceable in any other Member State. A condition considered necessary for this step was the introduction of common applicable law rules for maintenance matters in the European Union.

The European Community waited with the finalisation of the Maintenance Regulation until the new Hague instruments were adopted, to make the new European provision as far as possible compatible with the new international rules, see also Recital 8 of the Maintenance Regulation. As for the applicable law rules, which the new Regulation was supposed to include, it was long open, whether separate European applicable law rule would be introduced or whether the new Hague instrument on applicable law would be used as the common basis for applicable law inside the European Union. Finally the latter option was chosen. A certain difficulty, however, derived from the fact that some Member States indicated that would not were willing to accept the new applicable law regime. To enable an application of the new Maintenance Regulation for these States and still abolish the exequatur regarding decisions based on the 2007 Hague Protocol applicable law regime, it was decided that the maintenance regulation would contain two sets of rules regarding the recognition and enforcement of decisions.