Korkein oikeus; 2016-03-24; A, B; KKO:2016:23
Decision by national courts in the field of European Union law — ECLI:FI:KKO:2016:23
Date: 2016-03-24
Subject matter: Judicial cooperation in civil matters
Origin: Finland

82016FI0324(51)_ENG_SUMJURE
JURE summary
JURE summary
A Belgian court settled the dispute between B (hereinafter “the plaintiff”) and A (hereinafter “the defendant”) regarding the care of their children. According to that judgment, the children’s place of residence will be that of the defendant, but the plaintiff would have the right of access. At the same time, the court imposed a penalty pay to safeguard the right of access, according to which the defendant must pay to the plaintiff EUR 1,000 per child for each appointment in which the child has not been transferred to the plaintiff.
The plaintiff applied to the Finnish District Court against the defendant claiming that the defendant should pay him EUR 23_398.69 for missed appointments, or, to issue a declaration of enforceability of foreign judgment. The defendant opposed the application, alleging that the obligation to pay the amount was not definitively confirmed by Belgian court and that the right of access was not neglected from her side.
The District Court applied the Brussels I Regulation (1) and dismissed the application invoking Article 49, according to which “A foreign judgment which orders a periodic payment by way of a penalty shall be enforceable in the Member State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the Member State of origin”.
The plaintiff appealed this decision alleging that the New Brussels II Regulation (2) should be applied to this matter. The Court of Appeal upheld the decision of lower court reasoning it by the fact that the penalty payment issued to safeguard the right of access belongs to the enforcement procedure, which is by Article 47 “governed by the law of the Member State of enforcement”.
The plaintiff filed a cassation appeal to the Korkein oikeus (hereinafter “the Supreme Court”). The Supreme Court held that the final decision depends on the interpretation of the Brussels I Regulation and the New Brussels II Regulation, which had not yet been provided by the case-law of the Court of Justice of the European Union ("CJEU"). Therefore, the Supreme Court requested a preliminary ruling, which was answered by the judgment in case C-4/14 (3). The CJEU ruled, firstly, that the Brussels I Regulation does not apply to the enforcement of a penalty payment which is imposed in a judgment concerning rights of custody and rights of access in order to ensure that the holder of the rights of custody complies with those rights of access”, secondly, that “recovery of a penalty payment forms part of the same scheme of enforcement as the judgment concerning the rights of access that the penalty safeguards and the latter must therefore be declared enforceable in accordance with the rules laid down by” the New Brussels II Regulation, thirdly, that in the context of the New Brussels II Regulation, “a foreign judgment which orders a periodic penalty payment is enforceable in the Member State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the Member State of origin.”
Based on the interpretation of the CJEU, the Supreme Court pointed to the non-disputed fact that the final amount of the penalty payment imposed on the defendant was not finally confirmed in Belgium. In such a situation, the party benefiting from the periodic penalty payment is required to use the procedural steps available in Belgium in order to obtain a confirmation of the final amount of the payment.
Consequently, as the lower courts, the Supreme Court considered the application of the plaintiff inadmissible and the decisions of lower court were left unchanged.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(3) Judgment of the Court of Justice of 9 September 2015, Christophe Bohez v Ingrid Wiertz, C-4/14, ECLI:EU:C:2015:563.