WRITTEN QUESTION E-2755/02

by Avril Doyle (PPE-DE) to the Commission

(1 October 2002)

Subject: Cross-border social issue

Does the Commission play a role in helping citizens with cross-border welfare problems to resolve them satisfactorily? If so, can it indicate which of its departments can assist or intervene? (Details of particular case available if required). The case in question involves maintenance payments in respect of two children of an Irish citizen from her divorced Greek Cypriot husband. Can the Commission indicate how justice can be best served?

Answer given by Mr Vitorino on behalf of the Commission

(21 November 2002)

The Honourable Member wishes to know whether the Commission can intervene on behalf of citizens facing cross-border social problems or provide them with assistance. The case at issue concerns the recovery by an Irish national of the maintenance payable by her Cypriot ex-husband for the children resulting from their marriage.

The Commission has no power to take action to resolve the difficulties encountered by individuals residing on Union territory or who are nationals of a Member State.

However, the European or international instruments applicable in the Member States do provide a number of options.

Under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters(1), the defendant in cases of the obligation to pay maintenance the ex-husband in this case can be sued either in the courts of the Member State where he is domiciled or in the court of the place where the maintenance creditor in this case the ex-wife and her children are domiciled or habitually resident. The maintenance creditor therefore has a choice if the defendant is resident within the territory of a Member State.

If this is not so in this case, if the defendant is resident in Cyprus, which is not made clear in the written question given that the jurisdiction of the courts of the Member States is established by their national laws in such cases, the issue of the jurisdiction of the Irish courts must be resolved under Irish procedural law.

Moreover, a decision taken in a Member State is recognised and can be implemented in another Member State in accordance with the simplified procedures laid down in the Regulation of 22 December 2000. However, the recognition and implementation in Cyprus of a decision taken by a Member State court is not covered by Community law.

Moreover, the New York Convention of 20 June 1956 on the Recovery of Maintenance Abroad, which has been ratified by both Ireland and Cyprus and is therefore applicable in both countries, provides for the establishment by each contracting state of a Transmitting Authority and a Receiving Agency. The latter is required, in particular, to take, on behalf of the claimant and subject to the limits of the powers conferred by him or her, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.

Consequently, the Cypriot receiving agency, in accordance with the provisions of Cypriot law, could either recognise and implement the decision taken at the maintenance creditor's request by the competent Irish court, if necessary after instituting a special procedure in Cyprus for this purpose, or bring a new action with a view to having the ex-husband ordered to pay maintenance.

Moreover, the New York Convention of 1956 includes a number of provisions which provide for cooperation between the transmitting authorities and receiving agencies of the contracting states in order to recover the maintenance due.

It also stipulates that maintenance creditors present within the territory of a contracting state must address themselves to the transmitting authority of that state.

As the role allotted to their receiving authorities by the states party to the New York Convention varies considerably, it seems preferable in this case for the maintenance creditor to ask the transmitting authority of her country of residence about the options open to her in practice as a result of cooperation with Cyprus.

The Irish transmitting authority is the Ministry of Justice, 72-76 St Stephen's Green, Dublin 2.

(1) OJ L 12, 16.1.2001.