sou · GYB359 · 2010-09-01 00:00:00 — If the other party applies to change an enforceability decision, adversarial proceedings will ensue in the second stage where the other party may express his or her views.7 proposes supplementary provisions for the exequatur review. These provisions follow the model that currently applies to decisions declared enforceable under, for instance, the I Regulation and the Conventions. The proposal means, among other things, that of Appeal would be the competent court in both stages, that an appeal may be made to the Supreme Court against the decision of the Court of Appeal resulting from an application for a review, and that leave to appeal is required for the matter to be entertained by the Supreme Court. As regards Convention cases, it is also proposed that the party applying for recognition or a declaration of enforceability must submit a decision and that a decision resulting from an application for a declaration of enforceability must be served on those entitled to apply for a review. Similar provisions are included in the Maintenance Regulation. As regards the Maintenance Regulation, it is additionally proposed that there should be a provision whereby the grant of an application for enforcement by the Court of Appeal at the first stage shall be deemed to comprise a decision on provisional attachment or similar measure. The I Regulation and the Act with supplementary provisions on the jurisdiction of courts and recognition and international enforcement of certain decisions (2006:74) contain provisions corresponding to this provision and the article contained in the Regulation to be supplemented. The decisions that are directly enforceable, or that have been declared to be enforceable in , shall, as a main rule, be enforced according to Swedish law. proposes that a provision be introduced in statutory law that these decisions are to be enforced under the Enforcement Code in the same way as a corresponding Swedish judgment. also proposes that should notify the Commission that the , Welfare Committees are such 7 There is also an alternative procedure according to the Convention, but the EU is not likely to apply this. The alternative procedure means that the other party will be heard immediately. Swedish administrative authorities that, as regards maintenance matters, are to be equated with a court in the sense of the Maintenance Regulation. Corresponding notice should be provided as regards the 2007 Hague Convention, i.e. that the decisions of these Swedish administrative authorities always satisfy the requirements mentioned in Article 19.3 of the 2007 Hague Convention, which means that these decisions do not have to be provided with a special document in each individual case, indicating that the decision may be made the subject of an appeal to or review by a judicial authority and have a similar force and effect to a decision of a judicial authority on the same matter. An agreement on maintenance obligations concluded before or authenticated by an administrative authority can also be recognised and enforced under the Maintenance Regulation and the 2007 Hague Convention under certain specific circumstances, provided they are enforceable in the State of origin. According to the Maintenance Regulation, it is also possible for the parties to conclude agreements about the jurisdiction of courts in an EU , with which there is some special connection. The parties can also agree under certain conditions that the law of a particular State shall apply in accordance with the 2007 Hague Protocol. This can involve both agreements about a particular law applying to a particular proceeding and agreements that are generally applicable. Certain protective rules have been established for creditors in respect of generally applicable choice-of-law agreements. For example, it is not possible to conclude such agreements when a maintenance obligation applies in respect of a person under the age of 18 years or an adult who, by reason of an impairment or insufficiency of his or her personal faculties, is not in a position to protect his or her interest. Certain other protection rules also apply. The question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the State of the habitual of the creditor at the time of the renouncement. As regards all choice-of-law agreements, if any of the parties at the time when the choice of applicable law is made were not fully informed and aware of the consequences of the choice, the law designated shall not apply where the application of this law would lead to manifestly unfair or unreasonable consequences for any of the parties. does not propose any supplementary provisions for agreements. The possibility of concluding an agreement on competent courts and applicable law are directly prescribed by the international instruments. It is however stressed that attorneys and other legal advisors have particular reason to observe the provisions on agreements concerning applicable law, with regard to the fact that inadequate information may result in the agreement being rejected at subsequent proceedings. Not all of the agreements concerning maintenance that can currently be concluded according to Swedish internal law satisfy the requirement prescribed by the Maintenance Regulation and the 2007 Hague Convention to enable them to be enforced in another country. emphasises that it would be useful if parents and spouses could conclude agreements on maintenance under Swedish law that are enforceable abroad to a greater extent than is currently feasible. However, this requires the introduction of a new system in Swedish law, where agreements on maintenance can be registered by or concluded before an authority, which calls for further deliberations that do not fall within the ambit of the work of this Committee. Cooperation through and their tasks A Central Authority should be appointed under both the Maintenance Regulation and the 2007 Hague Convention. must cooperate with each other and perform the tasks prescribed by the respective instrument. These are broadly consistent. The tasks mainly involve helping an applicant to ensure that the application contains the information and the documents required, receiving applications made through a Central Authority in another country and transmitting it to the correct authority in their own country, and also, on request, helping another Central Authority with various tasks required in matters according to the instruments or themselves making a corresponding enquiry to another Central Authority. Applications must (Maintenance Regulation) or respectively may (2007 Hague Convention) be made on special forms, the aim of which is to reduce translation costs and facilitate communication between the . An individual can choose whether or not to make use of the . Individuals who engage the are entitled to free help to a greater extent. In conjunction with applications transmitted by the Central Authority of another State, the Swedish Central Authority will take all appropriate measures to, for instance, help to locate the debtor or the creditor, help obtain relevant information concerning income, encourage amicable solutions, facilitate ongoing enforcement and provide assistance in establishing parentage. Appropriate measures in each individual case depend on what the matter involves. If the application relates to a declaration of enforceability, the help provided by the Central Authority may comprise forwarding the application to the exequatur authority (of Appeal). The Central Authority may ask for an application to be supplemented and does not have to process the application if any of this supplementary information or documentation is not submitted. A request for a special measure that the Central Authority receives from or makes to another Central Authority without any application pending may involve helping to locate the debtor or to obtain information about financial circumstances. In that way, a creditor may, for instance, learn that the debtor is in the State and the information regarding income may provide some indication of whether there is reason to proceed further with an application for enforcement. proposes that the Government be authorised by law to appoint a Central Authority in in accordance with the Maintenance Regulation and the 2007 Hague Convention. In the opinion of the Committee, the should be entrusted with the task of being the Central Authority. is already the Central Authority under the Convention, which will continue to apply in relation to the Convention States that have not acceded to the 2007 Hague Convention as well, and accordingly is well acquainted with the recovery of maintenance in international situations. The tasks of the Central Authority have been prescribed by the Maintenance Regulation and the 2007 Hague Convention. Central Authority may draw up more detailed frameworks for its work. proposes that it should not be possible to appeal against a decision not to process an application or approve a request for a special measure from a foreign Central Authority that has been made by the Swedish Central Authority. Such a decision does not become legally effective and the foreign Central Authority can always with a new application. has not seen any need to rely on the possibility of appointing any other authority to perform some of the tasks for which the Central Authority is responsible according to the instruments. As regards the information that is to be obtained and forwarded within the framework of the cooperation under the Maintenance Regulation, the Committee considers that the Central Authority, in conjunction with applications to obtain or amend a judgment in respect of maintenance, will have access to the information required, namely address details. If the application relates to enforcement instead, the Swedish Enforcement Authority, as enforcement authority, may make enquiries about income and assets. Only address details are relevant in the event that the application only relates to the recognition or enforceability of a decision. If it concerns a request for special measures under the Maintenance Regulation, the Central Authority may need to obtain further information in addition to the address details. However, this only applies if the creditor can produce a decision that is to be enforced. The Central Authority must then use appropriate and reasonable means to obtain information about whether the defendant has income or assets in . In most cases, it would probably be sufficient for the Central Authority to get official information about the debtors taxed income together with interest income and expenditure. In addition, the may have information about current income if the debtor has received social insurance benefits. This information will probably be sufficient in the vast majority of cases. Only if there is reason, should the Central Authority go further and make enquiries with other authorities. Then it is primarily the Swedish Enforcement Authority that may hold relevant information. The obligation for the Swedish Enforcement Authority to disclose information is prescribed by the Maintenance Regulation and secrecy provisions do not preclude the disclosure of information; Chapter 10, Section 28 of the Public Access to Information and Secrecy Act (2009:400 – OSL). does not consider that there is any need to authorise any other authority to provide the Central Authority with information under the Maintenance Regulation. According to the 2007 Hague Convention, the Central Authority shall take all reasonable measures to, among other things, help locate the debtor or the creditor and obtain information concerning income. There is no provision corresponding to the provision contained in the Maintenance Regulation that obliges other authorities to provide information to the Central Authority. has the Committee considered it necessary to propose any such provision. The public information to which the Central Authority has access is deemed to normally be sufficient to meet the obligations under the Convention. The Central Authority may, when applicable, also transmit information subject to secrecy to a foreign Central Authority. In this respect, the Maintenance Regulation requires more than the 2007 Hague Convention, but an assessment should still be made as to whether it is appropriate and reasonable for the information to be disclosed. Information subject to secrecy may be transmitted under the 2007 Hague Convention when allowed under OSL. Information received by the Central Authority may be linked to a matter concerning maintenance support. Such information will then be subject to social insurance secrecy (Chapter 28, Section 1 of OSL). Otherwise, no secrecy provision currently applies to the Central Authority. proposes that the secrecy provisions contained in Chapter 28, Section 1 of OSL are also made to apply to matters under the Maintenance Regulation and the 2007 Hague Convention, and similarly to matters under the Convention. also proposes that a secrecy provision be introduced into OSL for courts in such matters. proposes that a provision be introduced into the Social Insurance Code to afford the the right to process personal data under the said instruments. also proposes that should be allowed to transfer personal data to competent authorities in a third country (that is, a State outside the EU and EEA) if this is necessary. It is otherwise considered that the current law relating to the processing and holding of personal data is adequate to meet the obligations contained in the Maintenance Regulation and the 2007 Hague Convention. Both the Maintenance Regulation and the 2007 Hague Convention are based on applications being made through , but this is not an absolute requirement. It is still possible to make a direct application to a competent authority. In these cases, the applicant must also be afforded access to a judicial review. However, there is no obligation in any case to provide free legal aid or free legal assistance (see further below). do the provisions on cooperation apply, which means that the Central Authority cannot help the applicant to locate the debtor and ensure that the application is complete. Legal aid and legal assistance According to both the Maintenance Regulation and the 2007 Hague Convention, the States are liable to give the parties to a maintenance dispute access to a judiciary review. To ensure this access, the States must provide legal aid (Maintenance Regulation) and legal assistance (2007 Hague Convention). Legal aid in this context has a different meaning to legal aid under the Legal Aid Act (1996:1619). The scope of the legal aid and legal assistance respectively must be assessed from case to case, depending on what the matter involves. The Maintenance Regulation specifies what the legal aid must cover as necessary, such as legal assistance in bringing a case before an authority or a court and representation in court, interpretation and translation, exemption from or assistance with the costs of proceedings and the fees to persons mandated to take measures during the proceedings. The 2007 Hague Convention provides examples of what legal assistance may cover, such as, for instance, legal advice. The States can also meet their obligations through the Central Authority providing general information or forwarding an application to the exequatur authority. Legal aid and legal assistance must be provided without charge when an application is made by a creditor, through a Central Authority, and relates to a maintenance obligation based on a parent-child relationship for a child under the age of 21. In other cases, legal aid and legal assistance is provided under the preconditions prescribed by national law on the basis of an assessment of need and reasonableness. A public body that may under certain conditions be regarded as a creditor and that, for instance, is entitled to reimbursement of maintenance support provided may also be entitled to legal aid and legal assistance respectively. When legal aid or legal assistance is to be provided through a legal aid counsel under the Legal Aid Act, the Committee considers that the point of departure should be that legal aid is provided in the circumstances and on the conditions prescribed by the Legal Aid Act. In cases where legal aid or legal assistance is to be without charge, the Committee proposes that a number of the provisions contained in the Legal Aid Act are exempted from application. There should not, for instance, be any investigation of the applicants financial resources and nor should special reasons be required to grant legal aid. This means that in these cases costs for legal aid will be covered entirely by the State. General provisions and final and attached forms The instruments also contain general provisions and final provisions. Some of these are directed at the States and are not for application in an individual case, such as the provisions relating to reservations and the signing of and accession to the instruments. Forms have been produced and are included as appendices to the Maintenance Regulation and to the 2007 Hague Convention. These shall be used in various situations as mentioned in individual articles, for example in conjunction with applications. As regards language and translation, the Committee considers that should accept applications and forms completed in and translations made into Swedish, Danish or English (the Maintenance Regulation) and Swedish, Danish, English or Norwegian (the 2007 Hague Convention). This should be prescribed in the form of an ordinance. It should also be possible for contacts between the to be conducted in these languages; and as regards the Convention, in addition to the prescribed languages, English and French. However, if the EU provides for the possibility of reservation against the use of French, the Committee is of the opinion that should make such a reservation. The provisions of the Maintenance Regulation shall apply to proceedings instituted, to settlements approved by or concluded before a court, and to authentic instruments established after its date of application; that is, 18 2011. The provisions on recognition, enforceability and enforcement can under certain conditions also apply to decisions made before then. The 2007 Hague Convention in its turn shall apply to applications or requests received by the Central Authority or the competent authority (in the case of direct applications) in the requesting State after the Convention entered into force between the States. Special provisions apply to recognition and enforcement for those States that are also parties to the 1958 Hague Convention and the 1973 Hague Convention. The 2007 Hague Protocol shall not apply to maintenance claimed in a State relating to a period prior to the entry into force of the Protocol. Within the EU, the Protocol shall to a certain extent apply from and including 18 2011 (that is, from the date of application of this Maintenance Regulation) and then also as regards determining the law applicable to maintenance claimed relating to a period prior to the entry into force of the Protocol. Incorporation of instruments and legal technical solutions The Maintenance Regulation is an EU Regulation that will apply directly in . The 2007 Hague Protocol will also be directly applicable as of the EU acceding to the Protocol and the Member States (with the exception of and the UK) are bound by the Protocol through the EUs accession. As regards the 2007 Hague Convention, according to what the Committee has learned and on the basis of the negotiations conducted so far, it may be assumed that the EU will accede to the Convention. will then be bound through the EUs accession, which means that the 2007 Hague Convention will also become directly applicable in . For this reason, no proposals are made regarding the incorporation of the 2007 Hague Convention. can on its own volition extend the scope of the Convention or make reservations in relation to individual provisions unless this has been expressly allowed by the EU. For this reason, the Committee makes no such proposal. The Committees proposal for supplementary provisions to the Maintenance Regulation and the 2007 Hague Convention have been put into an enactment of its own. Entry into force and transitional provisions The Committees proposal for supplementary provisions should enter into force at the same time as the Maintenance Regulation, the 2007 Hague Convention and the 2007 Hague Protocol. The Maintenance Regulation and the 2007 Hague Protocol shall apply from 18 2011. It is not yet clear whether the same will apply to the 2007 Hague Convention. For this reason, it should be left to the Government to decide when the proposed legislation should enter into force. The Committees proposal for supplementary provisions does not require any transitional provisions. On the other hand, transitional provisions are proposed regarding the proposal to change the provisions on the jurisdiction of courts and choice of law contained in the Act concerning certain International Legal Relationships relating to Marriage and Guardianship. The jurisdiction of a court will not lapse in relation to maintenance in a case instituted under Chapter 3, Sections 6 or 12 prior to entry into force. Such cases must be considered under the old law. 1Förslag till lag med kompletterande bestämmelser till underhållsförordningen och Härigenom föreskrivs följande. 1 § Denna lag innehåller bestämmelser som kompletterar rådets förordning (EG) nr 4/2009 av om domstols behörighet, tillämplig lag, erkännande och verkställighet av domar samt samarbete i fråga om underhållsskyldighet (underhålls- förordningen) och av om internationell indrivning av underhåll till barn och andra familjemedlemmar (). Förnyad prövning enligt underhållsförordningen 2 § En ansökan om förnyad prövning enligt artikel 19.1 i underhållsförordningen ska göras skriftligen. Ansökan ska ges in till hovrätten, om det avgörande som ansökan om förnyad prövning avser är ett utslag från Kronofogde- myndigheten eller en dom från tingsrätten. I annat fall ska ansökan ges in till . Beviljas ansökan, ska rätten besluta att ny handläggning ska ske vid den myndighet som meddelade det avgörande som ansökan om förnyad prövning avser. Vid rättens handläggning gäller i övrigt bestämmelserna om resning i 58 kap. 5 §, 6 § första och andra styckena samt 8 § i tillämpliga delar. Beslut om erkännande och verkställbarhet 3 § är behörig domstol enligt artiklarna 27.1 och 32.2 i underhållsförordningen samt vid förfaranden enligt artikel 23, med undantag för artikel 23.10, . 4 § Den som ansöker om erkännande eller om verkställbarhets- förklaring av ett utländskt avgörande enligt Haagkonven- tion ska tillsammans med ansökan ge in avgörandet i original eller av myndighet bestyrkt kopia. 5 § Vid beslut med anledning av en ansökan enligt underhålls- förordningen eller om att ett utländskt avgörande ska erkännas eller förklaras vara verkställbart i ska bestå av en lagfaren domare. 6 § Om hovrätten vid det förfarande som avses i 5 § bifaller en ansökan enligt underhållsförordningen om att ett utländskt avgörande ska förklaras vara verkställbart, ska hovrättens beslut anses innefatta ett beslut om kvarstad eller om någon annan åtgärd som avses i 15 kap. . 7 § Ett avgörande med anledning av en ansökan om verkställ- barhetsförklaring enligt ska delges den som har rätt att ansöka om ändring. 8 § En ansökan om ändring ska ges in till . Vid handläggningen i av en ansökan om ändring av ett beslut enligt 5 § tillämpas bestämmelserna i om överklagande av tingsrätts beslut, om inte annat följer av underhållsförordningen eller .