sou · GYB359 · 2010-09-01 00:00:00 — Formulär har tagits fram och finns intagna som bilagor till underhållsförordningen och till . Dessa ska användas i olika situationer som nämns i enskilda artiklar, t.ex. i samband med ansökningar. När det gäller språk och översättning, anser utredningen att bör godta att ansökningar och formulär ifylls på och översättningar görs till svenska, danska eller engelska (underhålls- förordningen) respektive svenska, danska, engelska eller norska (). Detta bör föreskrivas i förord- ningsform. Även kontakter mellan centralmyndigheterna bör kunna ske på de nämnda språken, för konventionens del utöver de föreskrivna språken engelska och franska. Om EU ger möjlighet till reservation mot användandet av franska bör dock enligt utredningens uppfattning meddela en sådan reservation. Underhållsförordningens bestämmelser ska tillämpas på för- faranden som inleds, förlikningar som godkänns av eller ingås inför domstol och på officiella handlingar som fastställs efter det att förordningen börjar tillämpas, dvs. Bestämmelserna om erkännande, verkställbarhet och verkställighet kan under vissa förutsättningar tillämpas även på avgöranden som har meddelats . i sin tur ska vara tillämplig på ansökningar eller framställningar som mottagits av centralmyndigheten respektive den behöriga myndigheten (vid direkta ansökningar) i den anmodade staten efter det att konven- tionen trätt i kraft mellan staterna. Särskilda bestämmelser gäller erkännande och verkställighet för de stater som även är parter och . Haagprotokoll ska inte tillämpas på underhåll som har begärts i en stat med avseende före ikraftträdandet av protokollet. Inom EU ska protokollet i viss utsträckning tillämpas , dvs. när underhållsförordningen ska börja tilläm- pas, och då även när det gäller att fastställa tillämplig lag på under- håll som begärs avseende en tidsperiod som föregår protokollets ikraftträdande. Införlivande av instrumenten och lagtekniska lösningar Underhållsförordningen är en EU-förordning som kommer att gälla direkt i . Även Haagprotokoll kommer att vara direkt tillämpligt i och med att EU har tillträtt protokollet och medlemsstaterna (med undantag för och ) är genom EU:s tillträde bundna av protokollet. I fråga om 2007 års kan man, enligt vad utred- ningen erfarit, utifrån de förhandlingar som har förts utgå från att EU kommer att tillträda konventionen. kommer då att bli bundet genom EU:s tillträde, vilket innebär att även kommer att bli direkt tillämplig i . Några förslag i fråga om införlivande av lämnas därför inte. kan inte heller på egen hand utvidga konven- tionens tillämpningsområde eller meddela reservationer mot enskilda bestämmelser, såvida detta inte uttryckligen tillåts av EU. Utredningen lämnar därför inte heller några sådana förslag. Utredningens förslag till kompletterande bestämmelser till underhållsförordningen och har placerats i en egen lag. Utredningens förslag till kompletterande bestämmelser bör träda i kraft som underhållsförordningen, Haag- konvention och Haagprotokoll. Underhållsförordningen och Haagprotokoll ska börja tillämpas . Det är ännu oklart om detsamma kommer att gälla . Det bör därför överlämnas till regeringen att bestämma tidpunkten för när den föreslagna lagstiftningen ska träda i kraft. Utredningens förslag till kompletterande bestämmelser kräver inga övergångsbestämmelser. Däremot föreslås övergångs- bestämmelser när det gäller förslagen att ändra bestämmelserna om domstols behörighet och lagval i lagen om vissa internationella rättsförhållanden rörande äktenskap och förmynderskap. En domstols behörighet i fråga om underhåll i ett mål som anhängig- gjorts enligt 3 kap. 6 eller 12 § före ikraftträdandet ska inte gå förlorad. Sådana mål ska prövas enligt äldre rätt. was assigned to propose the supplementary provisions required for Unions (EU) Council Regulation adopted on on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation), including the reference, found in the Regulation, to the Hague Protocol of on the to Maintenance Obligations (the 2007 Hague Protocol). Our Terms of Reference also included analysing the Maintenance Regulation and explaining the similarities and differences, primarily in relation to the I Regulation1 and the Hague Convention of on the International Recovery of Child Support and Other Forms of Family Maintenance (the 2007 Hague Convention). Particular attention was to be attached to matters concerning legal aid, refusal or suspension of enforcement, exchange of information and confidentiality (secrecy), together with access to and the processing of personal information (data). was also to propose the statutory amendments that would ensue upon a future accession to the 2007 Hague Convention. Some of this work involved investigating the position of Swedish law in relation to the provisions of the Convention and analysing the consequences of becoming bound by the Convention. In this context, the relationship to other international instruments in this area was also to be described. Particular attention was also to be attached to issues regarding legal assistance, the exchange of information and the associated issues 1 Council Regulation (EC) No 44/2001 of on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. relating to confidentiality and also issues concerning the exequatur procedure and enforcement. To the extent that the issue arises, the Committee was also to adopt a position on how the Convention should be incorporated into Swedish law. Our Terms of Reference also included adopting a position on whether the scope of the Convention should be extended, either completely or partly, and whether there is reason to make reservations in accordance with the possibilities allowed by the Convention. was to provide proposals regarding which authority should be appointed as the Central Authority in relation to the Maintenance Regulation and the 2007 Hague Convention and to deliberate on whether certain tasks should be dealt with by the Central Authority or by other bodies. Scope and relationship to other international instruments The Maintenance Regulation aims at offering a person entitled to maintenance (= creditor) better means and to safeguard his or her rights. This shall be achieved by making it easy to obtain a decision in a that will be automatically enforceable in another without any formalities. The Regulation includes provisions on international jurisdiction, applicable law (in the form of a reference to the 2007 Hague Protocol; see further below), recognition and enforcement as well as cooperation. The Maintenance Regulation replaces the I Regulation as regards questions of maintenance. However, the Nordic Convention between , , , and regarding the recovery of maintenance2 will continue to apply. The Maintenance Regulation applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity. Even public bodies may be regarded as a creditor in the sense of the Regulation; for instance, if there is a claim for reimbursement of maintenance support paid out by a public body. The Maintenance Regulation will be directly applicable in . The object of the 2007 Hague Convention is to ensure efficient international recovery of child support and other forms of family 2 Convention between , , , and , signed in on 23 1962, regarding the recovery of maintenance contributions, and the agreement between , , and , signed in on 25 February 2000, concerning amending the above-mentioned Convention. This shall be achieved, among other things, by establishing a system of cooperation and by requiring effective measures for the prompt enforcement of maintenance decisions. The Convention applies to maintenance obligations arising from a parent-child relationship towards a person under the age of 21 years and also, under certain conditions, towards a spouse (or former spouse). It is also possible to extend the scope of the Convention. had to proceed on the basis that the EU will accede to the 2007 Hague Convention and thereby bind the Member States to the Convention, an approach that has been proposed by the Commission. In its proposal for a Council Decision, the Commission also proposed that the EU should issue a declaration whereby the entire scope of the Convention is extended to correspond to the scope of the Regulation. The EU has not yet adopted a position on this proposal. When this is done, will be bound by the position adopted by the EU. The 2007 Hague Convention replaces the Hague Conventions of 19583 and 19734 in the relationship between the Contracting States. The Convention on the Recovery Abroad of Maintenance5 is also replaced. The 2007 Hague Protocol contains provisions on applicable law to maintenance obligations arising from a family relationship, parentage, marriage or affinity. The Protocol is intended to supplement the 2007 Hague Convention, and shall, in accordance with a special reference contained in the Maintenance Regulation, apply when jurisdiction is exercised under the Regulation. The EU has acceded to the 2007 Hague Protocol. 3The Hague Convention of concerning the Recognition and Enforcement of Decisions relating to Maintenance Obligations in respect of Children. 4The Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions relating to Maintenance Obligations. 5The United Nations' Convention of 20 1956 on the Recovery Abroad of Maintenance. The Maintenance Regulation regulates when authorities in the Member States should have international jurisdiction regarding matters concerning maintenance obligations. Jurisdiction shall lie with the court of the country where the defendant or the creditor is habitually resident. Jurisdiction shall furthermore lie with the court that, according to the laws of its own country, has the jurisdiction to entertain proceedings concerning the status of a person or concerning parental responsibility when the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties. There are also certain opportunities under the Maintenance Regulation to reach an agreement on the jurisdiction of the courts in a particular . This contractual freedom is more limited than in the I Regulation and does not apply in the case of disputes concerning maintenance obligations towards a child under the age of 18. Jurisdiction may also be based on the appearance of the defendant before the court. Moreover, there are also provisions on subsidiary jurisdiction and jurisdiction on an exceptional basis (e.g. if it is impossible to reach a decision in a third State with which the dispute is closely connected).There is also a provision limiting the possibility of a creditor bringing new proceedings if a decision has already been made. The Maintenance Regulation is comprehensive in the sense that it does not leave any scope for generally applicable, autonomous provisions on jurisdiction. therefore proposes that the provisions contained in Chapter 3, Sections 6 and 12 of the Act concerning certain International Legal Relationships relating to Marriage and Guardianship (1904:26, p. 1), which currently grant Swedish courts the right to exercise international jurisdiction in among other things matters concerning maintenance, be changed so that they no longer cover maintenance matters. On the other hand, the Maintenance Regulation does not affect the scope of conventions and agreements that are in force when the Regulation enters into force, which means that both of the Conventions from 1988 and 2007 will continue to apply.6 If a 6 Convention of on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1988 Convention) and the Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2007 Convention). defendant habitually lives in a that is not one of the EU Member States, the Swedish courts shall thus exercise jurisdiction under the Convention that applies in relation to the other State. Furthermore, according to the Maintenance Regulation, the 2007 Convention will apply if the parties have agreed that there shall be exclusive jurisdiction in a that is not an EU . However, this does not apply as regards maintenance for children. The 2007 Hague Convention only contains indirect rules on jurisdiction. These mean that a is only liable to recognise and enforce a decision if the decision has been made in a in relation to which the defendant or creditor had a particular type of connection specified in the Convention. There is also a provision restricting the right to bring proceedings. This corresponds with the rule contained in the Maintenance Regulation, which limits the possibility for a debtor to institute proceedings if a decision has already been made. Choice of applicable law The EU has acceded to the 2007 Hague Protocol and this means that all Member States, with the exception of and the UK, are bound by the Protocol. For , this Protocol means regulation of an area that was virtually unregulated. The main rule according to the Protocol is that maintenance obligations shall be governed by the law of the State of the habitual of the creditor. Some exceptions have been adopted favouring certain creditors, where an application of the law of the of their habitual would not be in their interest. An exception applies, for example, in the case of maintenance obligations of parents towards their children and children towards their parents. The law of the forum shall apply if a creditor, who is subject to the rules on exceptions, is unable to obtain maintenance according to the law of the of his or her habitual . Furthermore, the law of the forum shall apply if the creditor has instituted proceedings in the State where the debtor has his or her habitual . However, the law of the State where the creditor has his or her habitual apply instead if the creditor is unable to obtain maintenance according to the law of that State. If the creditor is unable to obtain maintenance by virtue of any of the laws, the law of the State of the common nationality shall apply if the debtor and creditor have a common nationality. There are also exceptions for maintenance obligations between spouses, ex-spouses or parties to a marriage that has been annulled. If the law in a State other than the State where the creditor is habitually resident, in particular the State of their last common habitual , has a closer connection with the marriage, the law of that State shall apply. However, a prerequisite for this is first an objection by a party and second an assessment of whether there is a closer connection between the law in the other State and the marriage. In this connection, account must be taken of, among other things, the place where the spouses were habitually resident, the State in which the marriage was entered into and also where the divorce took place. There is also a special rule concerning contesting maintenance obligations. However, this does not apply to a maintenance obligation arising from a parent-child relationship and a maintenance obligation between ex-spouses. This rule means that the debtor may contest a claim from the creditor on the ground that there is no maintenance obligation, under both the law of the State of the habitual of the debtor and the law of the State of the common nationality of the parties, if there is one. The provisions can come into question, for instance, in a relationship between stepparents and children or in the case of maintenance obligations of children towards their parents. According to the Protocol, it is possible to agree to some extent on applicable law (see further below). The law applicable to the maintenance obligation shall determine inter alia whether, to what extent and from whom the creditor may claim maintenance and also questions concerning prescription periods. The application of law may only be refused if its effects would be manifestly contrary to the public policy of the forum. It is consequently only the effects of the application in the concrete case that are to be taken into account. It is not sufficient for the family relationship upon which the maintenance claim is based to be deemed to be manifestly contrary to the public policy of the State (for instance polygamy). The needs of the creditor and the resources of the debtor as well as any compensation which the creditor was awarded in place of periodical maintenance payments shall be taken into account in determining the amount of This applies regardless of which States law is generally applicable. As mentioned, jurisdiction in maintenance issues will be exercised either under the Maintenance Regulation or according to either of the Conventions. The 2007 Hague Protocol shall apply when jurisdiction is exercised according to the Maintenance Regulation. In the opinion of the Committee, the Protocol should also apply when jurisdiction is exercised under the Conventions. There is thereby no scope for generally applicable provisions on choice of law. therefore proposes that the provisions contained in Chapter 3, Section 6 of the Act concerning certain International Legal Relationships relating to Marriage and Guardianship, which state among other things that issues concerning maintenance shall be considered according to Swedish law if the child is resident in , should no longer cover maintenance matters. The Maintenance Regulation states that the law applicable to maintenance obligations shall be determined in accordance with the Protocol, which means that the application of the Protocol is mandatory for the courts and other authorities of the States. This is also prescribed by individual articles. Maintenance obligations shall be governed by the law of the State where the debtor is habitually resident, unless otherwise prescribed by the Protocol. In the opinion of the Committee, this means that Swedish courts in cases concerning maintenance with international connections must fully understand the provisions of the Protocol. This also means that the Protocol imposes greater demands on the court to actively direct the proceedings regarding which law is to be applied than what has been required until now in cases concerning maintenance obligations. With reference to the Maintenance Regulation, decisions from all EU Member States shall be recognised without any special procedure being required. As regards enforcement, there are two alternative procedures depending on whether or not the of origin is bound by the 2007 Hague Protocol. Decisions from States bound by the 2007 Hague Protocol (that is, from all EU Member States with the exception of and the UK) shall be enforced without the need for a declaration of enforceability (exequatur), on condition that the decision involved is enforceable in the State of origin. This is new as compared to the I Regulation. A debtor who has not entered an appearance in the of origin is under certain preconditions afforded the right to apply for a review of the decision within a certain period. The right to a review applies if the document instituting the proceedings was not served in sufficient time and in an appropriate way or if he or she was prevented from contesting the maintenance claim by reason of force majeure or due to extraordinary circumstances without any fault on his or her part. A defendant who has failed to challenge the decision when it was possible to do so is not entitled to a review. proposes certain supplementary provisions for processing an application for a review. The application should be presented to the Court of Appeal if the original decision is a ruling from the Swedish Enforcement Authority (Kronofogde- myndigheten) or a judgment from a district court. Otherwise, if the decision relates to a decision concerning an obligation to reimburse maintenance support paid out by the (), the application should be presented to of Appeal. The application must be made in writing. The relevant parts of the provisions on relief for a substantive defect contained in the Code of Judicial Procedure apply to proceedings at the Court of Appeal. Where the necessary conditions for a review are met, the Court of Appeal should decide that new proceedings should take place at the authority that made the original decision. In such a case, the Maintenance Regulation prescribes that the effect of the original decision is lost (except as regards interrupting the prescription or the like). According to the Maintenance Regulation, it is the law of the of enforcement that shall apply as regards the refusal or suspension of enforcement. However, the Regulation contains certain special provisions. Among other things, enforcement may be refused if the right to enforce the decision is extinguished by the effect of prescription. This shall be assessed either according to the law of the of origin or the law of the of enforcement, whichever provides for the longer limitation period. Enforcement may also be suspended if an application for a review has been submitted or if the enforceability of the judgment has been suspended in the of origin. proposes that the Swedish Enforcement Authority be the competent authority for making decisions as regards refusal and suspension of enforcement and that appeals should be allowed against decisions made by the Swedish Enforcement Authority on matters concerning suspension of enforcement. Current law already allows appeals to be made against its decisions concerning refusal of enforcement. In order for decisions from and the UK – which are States not bound by the 2007 Hague Protocol – to be enforceable in , an exequatur procedure is required using same model as under the I Regulation (see further below). The grounds for refusing recognition and enforcement also have corresponding provisions in the I Regulation – such as public policy, incompatibility with a decision issued in the requested State or with a previous decision made in another State – provided the decision satisfies the conditions for recognition in the requested State. However, a new decision, resulting from changed circumstances, does not mean that the new decision is incompatible. According to the 2007 Hague Convention, decisions must be recognised and enforced in other Contracting States. Recognition and enforcement are mandatory if there are no grounds for refusal under the Convention; for example, if the defendant or the creditor was habitually resident in the State of origin at the time the decision was made. Subject to certain exceptions, the Conventions grounds for recognition correspond to the rules on jurisdiction contained in the Maintenance Regulation. This means that a decision made in a of the EU on the basis of the jurisdiction provisions contained in the Maintenance Regulation will normally be recognised in a State that has acceded to the 2007 Hague Convention. However, recognition and enforcement may be refused under certain circumstances, for instance if the decision was obtained by fraud in connection with a matter of procedure or if its recognition would be contrary to public policy. Just like decisions under the Maintenance Regulation from and the UK, decisions made in a State bound by the 2007 Hague Convention must undergo an exequatur procedure to enable their enforcement in . A two-step procedure has been prescribed as it has in the Maintenance Regulation. stage relates to a formal consideration of the preconditions for enforcement and the other party is not given the opportunity to express his or her views.