Wednesday, 16 December 2009

Living in the EU: Maintenance obligations

Basically the nation states have made laws for domestic situations, but people are more versatile than that. They conduct business and live their lives across borders. For instance, about eight million EU citizens live in another member state than their country of origin. Mobility complicates matters legally, with regard to marriage, divorce, maintenance, inheritance and other situations.

Without the European Union, it would be more difficult to deal with the fall-out of cross-border life situations, although the EU is not the only active player.

Slowly, the EU is moving towards an area of freedom, security and justice (FSJ), better equipped to deal with the results of free movement of persons, through judicial cooperation in civil matters.

Hague Protocol

The European Union (formerly European Community) does not have to create every rule from scratch. The member states have long participated in intergovernmental organisations and conferences dedicated to the harmonisation of law.

One of these is the Hague Conference on Private International Law, which works since 1893 to achieve common (conflict) rules in the areas of international protection of children, family and property relations; international legal co-operation and litigation; international commercial and finance law.

The European Union tries to make judicious use of existing, wider rules and its own aims at deeper integration to create a common judicial area of mutual recognition of decisions.

We have a fresh example with regard to maintenance obligations.

The European Union has decided to accede to the Hague Protocol, which offers conflict of laws rules for maintenance obligations. The applicable law is determined by the Protocol:

COUNCIL DECISION of 30 November 2009 on the conclusion by the European Community of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (2009/941/EC), published in the Official Journal of the European Union (OJEU) 16.12.2009 L 331/17.

Council Regulation 4/2009

Another part of the puzzle is Council Regulation 4/2009, with detailed rules (79 pages of them) on jurisdiction, conflict of laws, recognition and enforceability, enforcement, legal aid and cooperation between Central Authorities. The Regulation covers maintenance obligations arising from a family relationship, parentage, marriage or affinity, in order to guarantee equal treatment of all maintenance creditors:

COUNCIL REGULATION (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, published OJEU 10.1.2009 L 7/1.

Lisbon Treaty

Since 1 December 2009, Article 81 of the Treaty on the Functioning of the European Union contains the aims actions of the European Union with regard to judicial cooperation in civil matters (OJEU 9.5.2008 C 115/78-79):


Article 81 TFEU
(ex Article 65 TEC)

1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:

(a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases;

(b) the cross-border service of judicial and extrajudicial documents;

(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;

(d) cooperation in the taking of evidence;

(e) effective access to justice;

(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;

(g) the development of alternative methods of dispute settlement;

(h) support for the training of the judiciary and judicial staff.

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.

Ralf Grahn

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