Opinion of the Advocate General — ECLI:EU:C:2020:923
Date: 2020-11-12
Language of the case: English
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Neutral Citation No. TRE11015Ref:
Judgment: approved by the Court for handing down 
(subject to editorial corrections)*
Delivered: 30.08.2019
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
ON APPEAL FROM
THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND 
QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)
IN THE MATTER OF AN APLICATION BY TKF FOR JUDICIAL REVIEW
AND IN THE MATTER OF DECISIONS OF THE DEPARTMENT OF JUSTICE
FOR NORTHERN IRELAND
Before: Stephens LJ, Deeny LJ and Treacy LJ
Order for Reference to the Court of Tustice of the European Union pursuant to
Article 19(3)(b) of the Treaty on European Union and Article 267 of the Treaty on
the Functioning of the European Union
Introduction
[1] By this reference Her Majesty's Court of Appeal in Northern Ireland requests 
the Court of Justice of the European Union ("the CJEU") to provide a preliminary 
ruling on an issue of EU law relating to the registration and enforcement in Northern 
Ireland of a maintenance order made by a Polish court before Poland's accession to 
the EU pursuant to Council Regulation (EC) No 4/2009 of 18 December 2008 (the 
"Maintenance Regulation").
[2] The Applicant, TKF, is a Polish National and is represented by P.A. Duffy 
Solicitors. The Respondent is the Department of Justice for Northern Ireland, which 
is the Central Authority for the purpose of the Maintenance Regulation on 
jurisdiction, applicable law, recognition and enforcement of decisions and 
cooperation in matters relating to maintenance obligations. The Department of 
Justice is represented by the Departmental Solicitor's Office.
Registered at the .. <^
Court of Justice under No. ^ ^ ^
Luxembourg, Q 3. 10. 2019
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The Facts
[3] The Agreed material facts are as follows:
(i) TKF and AKF, both Polish nationals, were married in Poland in 1991. 
They had two sons.
(ii) On 1 April 1999 a Polish Court made a maintenance decision in favour 
of AKF against TKF.
(iii) In 2001 TKF left Poland to work in Germany.
(iv) Between December 2002 and February 2003, when TKF was resident 
and working in Poland, there were further maintenance proceedings in 
a Polish Court giving rise to an updated maintenance order dated 14 
February 2003.
(v) TKF and AKF divorced in 2004.
(vi) On 1 May 2004 Poland acceded to the EU
(vii) In August 2006 TKF came to Northern Ireland, where he has resided 
ever since.
(viii) On 8 April 2010, Poland became bound by the Hague Protocol.
(ix) On 18 June 2011 Council Regulation (EC) Number 4/2009 (the 
"Maintenance Regulation") came into operation.
(x) On 24 October 2013 a Clerk of the Court of Petty Sessions (District of 
Belfast and Newtownabbey) registered, and declared enforceable, two 
maintenance decisions made by the District Court in Bialystok, Poland 
dated 14 February 2003 (those decisions being variations of original 
orders made on 1 April 1999 by the same court). The Northern Irish 
decision records that the decision to so register was made in 
accordance with Article 75 of Council Regulation (EC) No 4/2009. That 
decision also declares that the decision so registered is enforceable for 
the purposes of section 2 of Chapter IV of the Maintenance Regulation. 
Notice was given to the Applicant in accordance with Regulation 6 of 
Part 3 of the Civil Jurisdiction and Judgments (Maintenance) 
Regulations 2011.
(xi) On 15 August 2014 a Clerk of the Court of Petty Sessions (District of 
Belfast and Newtownabbey) registered, and declared enforceable, a 
further maintenance decision made by the District Court in Bialystok, 
Poland dated 14 February 2003 (also being a variation .of an original
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order made on 1 April 1999 by the same court). The Northern Irish 
decision records that the decision to so register was made in 
accordance with Article 75 of Council Regulation (EC) No 4/2009. That 
decision also declares that the decision so registered is enforceable for 
the purposes of section 2 of Chapter IV of the Maintenance Regulation. 
Notice was given to the Applicant in accordance with Regulation 6 of 
Part 3 of the Civil Jurisdiction and Judgments (Maintenance) 
Regulations 2011.
(xii) In pre-action correspondence the Respondent indicated to the 
Applicant that it was relying on Article 75(2)(a) to ground its decision.
[4] There are also a number of contested facts which the national court has yet to 
decide. These are outlined below for context only:
(i) The Applicant claims that he had no knowledge of the 1999 Polish 
Court proceedings and neither attended nor was represented at any 
hearing.
(ii) The Applicant claims that while he received notification of the 
commencement of the second set of Polish Court proceedings, which 
spanned the period December 2002 to February 2003, he was not 
notified, did not attend, and was not represented at the operative 
hearing, which was held on 31 January 2003.
Applicable National Law Framework
[5] Regulation 4(1A) of the Magistrates Courts (Civil Jurisdiction and Judgments 
Act 1982) Rules (NI) 1986 provides:
"(1A) Where the clerk of petty sessions receives an 
application under Article 26 of the Maintenance 
Regulation for the registration for enforcement of a 
maintenance order made in a Regulation State other 
than the United Kingdom he shall, subject to Article 
24 of the Maintenance Regulations and to paragraphs 
(3) and (4) of this Rule, cause the order to be 
registered in his court by means of a minute or 
memorandum entered and signed by him in the 
Order Book."
[6] The Maintenance Regulation was implemented in the UK (including 
Northern Ireland) by the Civil Jurisdiction and Judgments (Maintenance) 
Regulations 2011. Regulation 6 of Part 3 of those regulations deals with the 
procedure for dealing with an application for registration of a maintenance decision
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under Section 2 of Chapter IV of the Maintenance Regulation and its ensuing 
enforceability.
Relevant sections of the Maintenance Regulations
CHAPTER I - SCOPE AND DEFINITIONS
"Article 2 - Definitions
(1) For the purposes of this Regulation:
1. The term 'decision shall mean a decision in 
matters relating to maintenance obligations given by 
a court of a Member State, whatever the decision 
may be called, including a decree, order, judgment or 
writ of execution as well as a decision by an officer of 
the court determining the costs or expenses. For the 
purposes of Chapters VII and VIII, the term 
'decision' shall also mean a decision in matters 
relating to maintenance obligations given in a third 
state
CHAPTER IV - RECOGNITION, ENFORCEABILITY AND ENFORCEMENT OF 
DECISIONS
"Article 16 - Scope of application of this chapter
(1) This Chapter shall govern the recognition, 
enforceability and enforcement of decisions falling 
within the scope of this Regulation
(2) Section 1 shall apply to decisions given in a 
Member State bound by the 2007 Hague Protocol.
(3) Section 2 shall apply to decisions given in a 
Member State not bound by the 2007 Hague 
Protocol.
(4) Section 3 shall apply to all decisions."
Section 1 - Decisions given in a Member State bound by the 2007 Hague Protocol
Section 2 - Decisions given in a Member State not bound by the 2007 Hague 
Protocol
"Article 23 - Recognition
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(1) A decision given in a Member State not bound 
by the 2007 Hague Protocol shall be recognised in the 
other Member States without any special procedure 
being required.
(2) Any interested party who raises the recognition 
of a decision as the principal issue in a dispute may, 
in accordance with the procedures provided for in 
this Section, apply for a decision that the decision be 
recognised.
(3) If the outcome of proceedings in a court of a 
Member State depends on the determination of an 
incidental question of recognition, that court shall 
have jurisdiction over that decision.
Article 24 - Grounds of refusal of recognition
A decision shall not be recognised:
(a) If such recognition is manifestly contrary to 
public policy in the Member State in which 
recognition is sought. The test of public policy may 
not be applied to the rules relating to jurisdiction;
(b) Where it was given in default of appearance, if 
the defendant was not served with the document 
which instituted the proceedings or with an 
equivalent document in sufficient time and in such a 
way as to enable him to arrange for his defence, 
unless the defendant failed to commence 
proceedings to challenge the decision when it was 
possible for him to do so;
(c) If it is irreconcilable with a decision given in a 
dispute between the same parties in the Member 
State in which recognition is sought;
(d) If it is irreconcilable with an earlier decision 
given in another Member State or in a third State in a 
dispute involving the same cause of action and 
between the same parties, provided that the earlier 
decision fulfils the conditions necessary for its 
recognition in the Member State in which recognition 
is sought.
A decision which has the effect of modifying an 
earlier decision on maintenance on the basis of 
changed circumstances shall not be considered an 
irreconcilable decision within the meaning of points 
(c) or (d).
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Article 26 - Enforceability
A decision given in a Member State not bound by the 
2007 Hague Protocol and enforceable in that State 
shall be enforceable in another Member State when, 
on the application of any interested party, it has been 
declared enforceable there.
Section 3 - Common provisions
CHAPTER VII - COOPERATION BETWEEN CENTRAL AUTHORITIES
Article 56 - Available applications
(1) A creditor seeking to recover maintenance under 
this Regulation may make applications for the 
following:
a. Recognition or recognition and declaration of 
enforceability of a decision"
CHAPTER IX - GENERAL AND FINAL PROVISIONS
"Article 75 - Transitional Provisions
(1) This Regulation shall apply only to proceedings 
instituted, to court settlements approved or 
concluded, and to authentic instruments established 
after its date of application, subject to paragraphs 2 
and 3.
(2) Sections 2 and 3 of Chapter IV shall apply:
(a) To decisions given in the Member States before 
the date of application of this Regulation for which 
recognition and the declaration of enforceability are 
requested after that date;
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(b) To decisions given after the date of application 
of this Regulation following proceedings begun 
before that date, in so far as those decisions fall 
within the scope of Regulation (EC) No 44/2001 for 
the purposes of recognition and enforcement.
Regulation (EC) No 44/2001 shall continue to apply 
to procedures for recognition and enforcement under 
way on the date of application of this Regulation.
The first and second subparagraphs shall apply 
mutatis mutandis to court settlements approved or 
concluded and to authentic instruments established 
in Member States.
(3) Chapter VII on cooperation between Central 
Authorities shall apply to requests and applications 
received by the Central Authority as from the date of 
application of this Regulation."
Legal Proceedings to Date
[7] The Applicant/Appellant challenged the decisions to register and declare 
enforceable the three Polish maintenance decisions before the High Court of 
Northern Ireland on the following grounds:
(a) Illegality: as Poland was not a Member State of 
the European Union when the Polish Court decisions 
were made, Section 2 of Chapter 4 of Council 
Regulation (EC) no 4/2009 of 18 December 2008 did 
not apply, thereby vitiating in law all of the 
impugned decisions.
(b) Illegality in the alternative: in any event the 
Maintenance Regulation, specifically Articles 23 and 
26, did not apply to the Polish Court decisions, with 
the result that the impugned decisions could not be 
made under paragraph 6 of Part 3 of the Civil 
Jurisdiction and Judgments (Maintenance)
Regulations 2011.
(c) Illegality in the further alternative: the Polish 
Court decisions were not in compliance with Article 
24 of the Maintenance Regulation, there being no 
evidence that the Applicant was aware of, attended 
or was represented at the proceedings in question.
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[8] The Applicant relied on the following case law: 
(a) AB v TIB [2015] EWHC192;
(b) Wolfgang Naturproducte v SEWAR spol, judgment 21 June 2017, 
Case C-514/10 [2012]
[9] The Respondent argued that article 75 (2) (a) of the Maintenance Regulation 
applies to decisions given in Member States before the date of application of the 
Regulation for which recognition and the declaration of enforceability are requested 
after that date and submitted that that chronology is satisfied in the instant case. It 
submitted that the effect of this is that sections 2 and 3 of Chapter IV of the 
Regulation would apply to the Polish maintenance decisions as Article 75 is silent as 
to Hague Protocol requirements.
[10] The Respondent drew support for this interpretation from Section 1 of 
Chapter IV which is excluded from application to any transitional provision scenario 
under Article 75 and which applies "to decisions given in a Member State bound by 
the 2007 Hague Protocol". The Respondent submits that this establishes that 
cognisance was given to the specific exclusion of Section 1, notwithstanding that it 
purports to apply to all Member States bound by the 2007 Hague Protocol.
[11] In relation to the first ground of challenge, the Learned Trial Judge found 
against the Applicant on the basis that the Maintenance Regulation contains no 
provision restricting its temporal scope to court maintenance orders made in Poland 
only after the date of Polish accession to the EU.
[12] In addition, the Learned Trial Judge found that Article 75(2) did not apply as 
Poland is a Hague Protocol State. Finally, the Judge found Chapter VII of the 
Maintenance Regulation did apply (by virtue of article 75(3))to the matters at hand 
and that the Orders were properly registered and enforced on foot of that Chapter.
[13] The referring Court is seized of an appeal as to the proper temporal 
application of the Maintenance Regulation for the purpose of registering and 
declaring enforceable maintenance decisions and as to the applicability of Article 
75(2) to decisions issued in Hague Protocol states.
Issues of EU Law arising (and necessity)
[14] The Court is mindful of the need for uniform interpretation of Community 
Legislation and in circumstances where several competing interpretations have been 
contended for as to whether:
(a) The Maintenance Regulation is applicable to maintenance decisions 
given in Poland before its accession to the EU; and
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(b) Whether the Northern Irish Court of Petty Sessions had jurisdiction 
to register the relevant decisions under any part of Article 75 of the 
Maintenance Regulation.
It appears that neither issue can be considered an acte claire. It is therefore necessary 
to obtain a preliminary ruling from the CJEU in order to resolve the core issues in 
the domestic proceedings.
The Questions Referred
[i] Must Article 75(2) of the Maintenance Regulation EC 04/2009 be 
interpreted as applying only to "decisions" which were given in States 
that were member states of the EU at the time those decisions were 
made?
[ii] Bearing in mind that Poland is now a Member State of the European
Union which is bound by the Hague Protocol, are maintenance 
decisions made by a Court in Poland in 1999 and 2003, that is, prior to 
Poland becoming a member state of the European Union, now capable 
of being registered and enforced in another EU Member State pursuant 
to any part of EC Regulation 04/2009 (the Maintenance Regulation), 
and in particular:
(a) Pursuant to Article 75(3) and Article 56 of 
the Maintenance regulation;
(b) Pursuant to Article 75(2) and Section 2 of 
Chapter IV of the Maintenance regulation;
(c) Pursuant to Article 75(2)(a) and Section 3 
of Chapter IV of the Maintenance regulation;
(d) Pursuant to any other Articles of the
Regulation?
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