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)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 61(c) in conjunction with the second sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Parliament (1),
Whereas:
(1)
The Community is working towards the establishment of a common judicial area based on the principle of mutual recognition of decisions.
(2)
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 (2) provides that the law applicable to maintenance obligations shall be determined in accordance with the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations (hereinafter referred to as the Protocol) in the Member States bound by that Protocol.
(3)
The Protocol makes a valuable contribution to ensuring greater legal certainty and predictability to maintenance creditors and debtors. Application of uniform rules to determine the applicable law will allow free circulation of decisions on maintenance obligations in the Community, without any form of control in the Member State where enforcement is sought.
(4)
Article 24 of the Protocol allows Regional Economic Integration Organisations such as the Community to sign, accept, approve or accede to the Protocol.
(5)
The Community has exclusive competence over all matters governed by the Protocol. This does not affect the positions of the Member States which are not bound by this Decision or subject to its application as referred to in Recitals 11 and 12.
(6)
The Community should therefore approve the Protocol.
(7)
The Protocol should apply between the Member States at the latest on 18 June 2011, the date of application of Regulation (EC) No 4/2009.
(8)
In view of the close link between the Protocol and Regulation (EC) No 4/2009, the rules of the Protocol should be applied in the Community on a provisional basis if the Protocol has not entered into force on 18 June 2011, the date of application of Regulation (EC) No 4/2009. A unilateral declaration to this effect should be made upon conclusion of the Protocol.
(9)
The rules of the Protocol should determine the law applicable to a maintenance obligation if a decision on that obligation is to be recognised and enforceable under the rules concerning the abolition of exequatur laid down in Regulation (EC) No 4/2009. In order to ensure that the same conflict of laws rules will be applied in the Community to maintenance claims relating to a period prior to as well as posterior to the entry into force or the provisional application of the Protocol in the Community, the rules of the Protocol should also apply to claims relating to a period prior to this event, notwithstanding Article 22 thereof. A unilateral declaration to this effect should be made upon conclusion of the Protocol.
(10)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland is taking part in the adoption and application of this Decision.
(11)
In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom is not taking part in the adoption of this Decision and is not bound by it or subject to its application.
(12)
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application,
HAS DECIDED AS FOLLOWS:
Article 1
The Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations is hereby approved on behalf of the European Community.
The text of the Protocol is attached to this Decision.
Article 2
The President of the Council is hereby authorised to designate the person(s) empowered to sign the Protocol in order to bind the Community.
Article 3
When concluding the Protocol, the Community shall make the following declaration in accordance with Article 24 thereof:
‘The European Community declares, in accordance with Article 24 of the Protocol, that it exercises competence over all the matters governed by the Protocol. Its Member States shall be bound by the Protocol by virtue of its conclusion by the European Community.
For the purpose of this declaration, the term “European Community” does not include Denmark, by virtue of Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, and the United Kingdom, by virtue of Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community.’.
Article 4
1. Within the Community, the rules of the Protocol shall apply provisionally, without prejudice to Article 5 of this Decision, from 18 June 2011, the date of application of Regulation (EC) No 4/2009, if the Protocol has not yet entered into force on that date.
2. When concluding the Protocol, the Community shall make the following declaration to take into account the possible provisional application referred to in paragraph 1:
‘The European Community declares that it will apply the rules of the Protocol provisionally from 18 June 2011, the date of application of 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 (3), if the Protocol has not entered into force on that date in accordance with Article 25(1) thereof.’.
Article 5
1. Notwithstanding Article 22 of the Protocol, the rules of the Protocol shall also determine the law applicable to maintenance claimed in a Member State relating to a period prior to the entry into force or the provisional application of the Protocol in the Community in situations where, under Regulation (EC) No 4/2009, proceedings are instituted, court settlements are approved or concluded and authentic instruments are established as from 18 June 2011, the date of application of Regulation (EC) No 4/2009.
2. When concluding the Protocol, the Community shall make the following declaration:
‘The European Community declares that it will apply the rules of the Protocol also to maintenance claimed in one of its Member States relating to a period prior to the entry into force or the provisional application of the Protocol in the Community in situations where, under 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 (3), proceedings are instituted, court settlements are approved or concluded and authentic instruments are established as from 18 June 2011, the date of application of the said Regulation.’.
Done at Brussels, 30 November 2009.