Green paper - Maintenance obligations
Date: 2004-04-15
Institutions: European Commission
Subjects: approximation of laws, divorce, family law, maintenance obligation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.4.2004 
COM(2004) 254 final 

GREEN PAPER 

Maintenance obligations  

(presented by the Commission) 

EN 

   EN 

 
 
 
  
TABLE OF CONTENTS 

1. 

2. 

3. 

Purpose of the Green Paper.......................................................................................... 4 

Consultation procedure ................................................................................................ 4 

Introduction .................................................................................................................. 5 

3.1. 

General background ..................................................................................................... 5 

3.1.1.  Planned work in the Community.................................................................................. 5 

3.1.2.  Work done at the Hague Conference ........................................................................... 7 

3.2. 

Relationships between the Community instruments and the Hague Conventions....... 8 

4. 

4.1. 

4.2. 

Scope of the future instruments.................................................................................. 10 

Concept of maintenance obligations .......................................................................... 10 

Arrears........................................................................................................................ 10 

4.2.1.  The Community project ............................................................................................. 11 

4.2.2.  Draft Hague Convention ............................................................................................ 11 

4.3. 

Persons to whom the future instruments should apply............................................... 11 

5. 

Rules of private international law .............................................................................. 13 

5.1. 

Direct jurisdiction....................................................................................................... 13 

5.1.1.  Community rules........................................................................................................ 13 

5.1.2.  Draft Hague Convention ............................................................................................ 14 

5.1.2.1.  Initial applications...................................................................................................... 14 

5.1.2.2.  Applications for modification .................................................................................... 15 

5.2. 

Recognition and enforcement of judgments .............................................................. 16 

5.2.1.  Community project..................................................................................................... 17 

5.2.1.1.  Abolishing the exequatur ........................................................................................... 17 

5.2.1.2.  Provisional enforcement............................................................................................. 18 

5.2.1.3.  Enforcement procedure as such ................................................................................. 19 

5.2.2.  Enforcement measures ............................................................................................... 20 

5.2.3.  Draft Hague Convention ............................................................................................ 21 

5.2.3.1.  Procedures for recognition and enforcement ............................................................. 21 

5.2.3.2.  Indirect jurisdiction as a condition for recognition and enforcement ........................ 22 

5.2.3.3.  Grounds for refusing recognition ............................................................................... 24 

5.3. 

Applicable law ........................................................................................................... 25 

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5.3.1.  The situation today..................................................................................................... 26 

5.3.2.  Questions to be settled by conflict rules .................................................................... 27 

5.3.2.1.  The principal question................................................................................................ 27 

5.3.2.2.  Scope of the applicable law........................................................................................ 29 

5.3.2.3.  Specific questions....................................................................................................... 30 

5.3.2.4.  Establishment of “family relationships”. ................................................................... 30 

5.3.2.4.1 Mobility conflict........................................................................................................ 31 

5.3.2.4.2 Agreements between the parties................................................................................ 31 

5.3.2.4.3 Limitation .................................................................................................................. 31 

6. 

Cooperation ................................................................................................................ 32 

6.1. 

Authorities responsible for cooperation ..................................................................... 32 

6.1.1.  Designation of authorities .......................................................................................... 32 

6.1.2.  Functions of designated authorities............................................................................ 33 

6.1.2.1.  Transmission of cases ................................................................................................ 33 

6.1.2.2.  Commencement of proceedings................................................................................. 34 

6.1.2.3.  Transmission of information ...................................................................................... 35 

6.2. 

Costs........................................................................................................................... 37 

7. 

Practical matters ......................................................................................................... 39 

7.1. 

Translations ................................................................................................................ 39 

7.1.1.  Forms.......................................................................................................................... 39 

7.1.2. 

Items in the file........................................................................................................... 40 

7.2. 

7.3. 

8. 

9. 

Items to be supplied ................................................................................................... 41 

Time limits ................................................................................................................. 42 

Welfare assistance...................................................................................................... 43 

List of questions ......................................................................................................... 44 

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1. 

PURPOSE OF THE GREEN PAPER 

The purpose of this Green Paper is to launch a wide-ranging consultation of circles interested 
in  the  legal  and  practical  questions  arising  in  situations  with  an  international  element  in 
matters of maintenance obligations.  

It  proceeds  from  a  study  commissioned  by  the  European  Commission,  from  contributions 
from experts in the Member States of the European Union and from information gathered in 
the course of work at the Hague Conference on Private International Law. 

It sets out the various aspects where there is an apparent need for Community rules, or new 
conventions in cases transcending the borders of the European Union, and suggests avenues to 
be  explored.  Gathering  the  reactions  and  opinions  of  all  those  concerned  by  the  question 
should provide input for the discussion of the objectives to be pursued both in the Community 
and in the Hague Conference. 

2. 

CONSULTATION PROCEDURE 

The  Commission  invites  all  persons  interested  to  send  their  replies  to  the  questions  in  the 
Green Paper, a full list of which is given at the end of the document. The list is obviously not 
exhaustive, and all comments on additional points will be welcome. 

Replies  and  observations  should  be  sent  by  30  September  2004.  But  in  the  run-up  to 
negotiations to be held at the Hague Conference on Private International Law in June 2004, it 
would  be  very  helpful  if  they  could  be  sent  to  the  Commission  as  quickly  as  possible,  and 
preferably by 15 May, to the following address: 

European Commission 
Directorate-General Justice and Home Affairs  
Unit JAI.C.1 (LX46 0/26) 
B – 1049 Brussels 

Fax: + 32 (0) 2 299 64 57 
E-mail: jai.coop.jud.civil@cec.eu.int 

Persons  interested  are  requested  to  send  their  contribution  in  a  single  copy  and  by  a  single 
means of communication – post, e-mail or fax. 

You  are  specifically  asked  to  state  if  you  do  not  wish  your  reply  or  observations  to  be 
published on the Commission’s website. 

The Commission is planning to organise a public hearing. 

4 

 
 
  
 
3. 

INTRODUCTION 

3.1. 

General background 

3.1.1.  Planned work in the Community 

The  Tampere  European  Council  on  15  and  16  October  1999  called  on  the  Council  to 
establish, on the basis of Commission proposals, special common procedural rules to simplify 
and accelerate the settlement of cross-border disputes concerning, in particular, maintenance 
claims. Among other things it recommended abolishing intermediate measures needed for the 
recognition  and  enforcement  in  one  Member  State  of  a  judgment  given  in  another  Member 
State. 

The Programme of Measures for the implementation of the principle of mutual recognition of 
decisions in civil and commercial matters, which refers to the Tampere conclusions, stresses 
that the question of maintenance obligations directly concerns the everyday lives of citizens 
and that guaranteeing effective recovery of claims is essential for the welfare of many people 
in Europe, and recommends the abolition of the exequatur procedure. Maintenance creditors 
are already eligible for the provisions of the Brussels Convention of 1968, now incorporated 
in  Council  Regulation  (EC)  No  44/2001  of  22  December  2000  on  jurisdiction  and  the 
recognition  and  enforcement  of  judgments  in  civil  and  commercial  matters.  Article  5(2)  of 
that  Regulation  provides:  “A  person  domiciled  in  a  Member  State  may,  in  another  Member 
State,  be  sued  …  in  matters  relating  to  maintenance,  in  the  courts  for  the  place  where  the 
maintenance  creditor  is  domiciled  or  habitually  resident  or,  if  the  matter  is  ancillary  to 
proceedings concerning the status of a person, in the court which, according to its own law, 
has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the 
nationality of one of the parties”. Maintenance creditors can thus opt to sue either in the court 
for the Member State where the debtor is domiciled or in the Member State where they are 
domiciled or habitually resident. Where the debtor sues, the only possibility is to sue in the 
courts for the Member State where the other side is domiciled. 

The  question  of  maintenance  obligations  is  thus one  of  the  areas  partly  covered  by  existing 
Community  instruments,  where  the  Programme  provides  for  the  adoption  of  a  series  of 
measures  including  the  introduction  of  provisional  enforcement  and  of  interim  measures  of 
protection. 

The Programme further states in general terms that “It will sometimes be necessary, or even 
essential, to lay down a number of procedural rules at European level, which will constitute 
common minimum guarantees intended to strengthen mutual trust between the Member States' 
legal  systems”  and  even  that  “discussions  should  be  directed  towards  a  certain  degree  of 
harmonisation of the procedures”. It envisages the adoption of a “series of ancillary measures 
[which]  would  consist  in  seeking  to  make  more  efficient  the  enforcement,  in  the  requested 
State,  of  judgments  delivered  in  another  Member  State”,  notably  by  allowing  “precise 
identification  of  a  debtor's  assets  in  the  territory  of  the  Member  States”  so  that  mutual 
recognition  can  operate  in  the  context  of  “enhancing  cooperation  between  Member  States' 
courts”, and measures for the “harmonisation of conflict-of-law rules”. 

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To gather the information needed for this programme, the Commission had a study done on 
the recovery of maintenance claims in the Member States of the European Union.1 

The summary report concluding the study done for the Commission states that “The recovery 
of maintenance claims in the Member States accounts for a vast mass of litigation as a result 
of the fragile state of family relationships” and “a Community problem as a result of the free 
movement of Community citizens”.  

Even so, the statistics relating to cooperation between Member States do not appear to reveal 
the true volume of cases requiring them to take action.  

As the report on the study says, “a detailed analysis of the French figures throws up a few 
surprises. Last year France received 11 requests from Germany, where it sent five. It received 
four cases from the United Kingdom and sent six. The German and English reports contain 
comparable figures. We are bound to be surprised by these low numbers of cases. Given the 
size of the population of these three States, their geographical proximity and their close links, 
it  can  reasonably  be  assumed  that  there  must  be  thousands  or  even  tens  of  thousands  of 
potential cases”. 

There  are  no  European  statistics  on  the  number  of  maintenance  claim  cases  requiring 
cross-border recovery, but a number of figures offer interesting pointers. 

According  to  Community  statistics,  in  1999,  about  six  million  citizens  of  Union  Member 
States resided in another Member State. 

In  many  Union  countries  the  number  of  divorces  per  1000  inhabitants  is  close  to  half  the 
number of marriages.  

The report on the study for Italy records that in 2000 the courts handled 155 621 divorce or 
separation petitions. Yet that year Italy had a divorce rate of 0.7 per 1000 inhabitants, which is 
four times lower than that for ten of the fifteen Member States.  

The  Spanish  report  shows  that  80%  of  the  divorce  or  separation  orders  award  maintenance, 
but that it is not actually paid in 50% of cases. 

And the report for Sweden, which has a population of 8.8 million, states that in 2001 about 
21 000  maintenance  debtors  registered  at  the  social  security  authorities  resided  abroad.  The 
total maintenance payments made by them were approximately €7 million.  

All these figures together give an idea of the importance, in several respects, of the question 
of the recovery of maintenance claims in the European law-enforcement area.  

Large  numbers  of  people  are  concerned;  the  difficulties  met  by  some  of  them  can  be 
extremely  costly  to  them,  both  in  material  and  in  psychological  terms;  and  the  sums  that 
States have to pay out to make up for the defaults of certain debtors are considerable. 

1 

It can be consulted on the website of the Directorate-General Justice and Home Affairs at: 
http://europa.eu.int/comm/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm 

6 

 
 
  
 
                                                 
It  is  true  that  the  cross-border  recovery  of  maintenance  claims  does  not  always  demand 
cooperation between States, either because debtors pay up spontaneously or because creditors 
apply  individually  for  the  enforcement  measures  available  to  them.  But  many  creditors 
probably do not insist on their rights because they are unaware of the cooperation mechanisms 
on which they can call, because there are no assistance facilities in their case, as in the case of 
an  adult  debtor  residing  in  a  country  that  provides  cooperation  only  for  minors,  or  because 
they give up after years of trying in vain. 

The  study  report  shows  that  the  cross-border  recovery  of  maintenance  payments  in  the 
European  law-enforcement  area  encounters  all  manner  of  difficulties  even  before  the 
judgment  awarding  maintenance  is  given,  on  account  of  the  deficiencies  in  cooperation 
between States, or at the actual enforcement stage. 

Merely  abolishing  the  exequatur  would  not  suffice  to  remove  all  obstacles  to  recovery  of 
maintenance claims in the European law-enforcement area, and other measures would have to 
be put into effect. 

3.1.2.  Work done at the Hague Conference 

The Hague Conference on Private International Law2 has also launched work on maintenance 
obligations so as to modernise the rules in the existing Conventions – a series of regional and 
bilateral agreements and five international conventions. 

These are:  

– 

– 

– 

– 

2 

The  Hague  Convention  of  24  October  1956  on  the  law  applicable  to  maintenance 
obligations towards children (ratified by Austria, Belgium, France, Germany, Italy, 
Luxembourg, the Netherlands, Portugal and Spain); 

The  Hague  Convention  of  15  April  1958  concerning  the  recognition  and 
enforcement  of  decisions  relating  to  maintenance  obligations  towards  children 
(ratified  by  Austria,  Belgium,  Denmark,  Finland,  France,  Germany,  Italy,  the 
Netherlands, Portugal, Spain and Sweden); 

The  Hague  Convention  of  2  October  1973  on  the  Law  Applicable  to  Maintenance 
Obligations (ratified by France, Germany, Italy, Luxembourg, the Netherlands, Spain 
and Portugal). This Convention replaces the Hague Convention of 24 October 1956 
on  the  law  applicable  to  maintenance  obligations  towards  children  in  relations 
between the States that are parties to it; 

The  Hague  Convention  of  2  October  1973  on  the  Recognition  and  Enforcement  of 
Decisions  relating  to  Maintenance  Obligations  (ratified  by  Denmark,  Finland, 
France, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain Sweden and 
the United Kingdom). This Convention replaces the Hague Convention of 15 April 
1958  concerning  the  recognition  and  enforcement  of  decisions  relating  to 
maintenance  obligations  towards  children  in  relations  between  the  States  that  are 
parties to it; 

The  Hague  Conference  on  Private  International  Law.  Permanent  Bureau:  6  Scheveningseweg, 
2517 KT The Hague, Netherlands. Website: http://www.hcch.net 

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and: 

– 

The  New  York  Convention  of  20  June  1956  on  the  Recovery  Abroad  of 
Maintenance,  concluded  in  the  UN3  (ratified  by  all  the  European  Union  Member 
States).  

In  1995  the  Hague  Conference  convened  a  Special  Commission  at  which  a  set  of 
recommendations were addressed to the States parties to these Conventions. Four years later 
another Special Commission unfortunately had to conclude that little improvement had been 
made  to  the  set  of  Hague  and  New  York  Conventions.  It  suggested  preparing  a  new 
instrument  that  would  “be  comprehensive  in  nature,  building  upon  the  best  features  of  the 
existing Conventions”. 

Following  the  conclusions  of  this  second  Commission,  the  Special  Commission  on  General 
and  Policy  Affairs  of  the  19th  Diplomatic  Session  of  the  Hague  Conference  in  April  2002, 
accepting the conclusions of the previous meeting, held in 2000, decided to enter as a priority 
agenda item the preparation of a new general convention on maintenance obligations.  

An  initial  Special  Commission  to  exchange  views  between  the  delegations  of  the  Member 
States of the Conference met in May 2003, and a second meeting is scheduled for 2004.  

3.2. 

Relationships between the Community instruments and the Hague Conventions 

The  commencement  of  work  at  the  Hague  Conference  in  parallel  with  work  in  the 
Community  inevitably  raises  questions  of  the  relationship  between  the  two.  As  the 
Commission  sees  it,  the  relationship  should  be  seen  in  terms  of  the  search  for  possible 
synergies between them. The Community should be in a position to adopt a coherent strategy 
in  the  negotiations  at  the  Hague  so  as  to  make  a  positive  contribution  to  improving 
international cooperation in the recovery of maintenance claims. 

In April 2003 the Commission accordingly presented the Council with a recommendation for 
a decision authorising it to open negotiations on behalf of the European Community for the 
adoption of a Convention on maintenance obligations in the Hague Conference. 

The Commission regrets that to date the Council has not decided to give the Commission that 
authorisation and that the Community is therefore absent from the negotiating table. 

Certain  Member  States  consider  that  priority  should  be  given  to  work  at  the  Hague 
Conference over work done at Community level. They feel it would be preferable to await the 
results of the Hague negotiations before proceeding to give effect to the Tampere conclusions 
and the Mutual Recognition Programme. 

3 

Incidentally, a Convention on the simplification of procedures for the recovery of maintenance claims 
was adopted by the Member States in 1990 but never came into force. 

8 

 
 
  
 
                                                 
The  Commission  cannot  share  this  view.  In  the  past  the  Hague  Conference  has  been  an 
important  instrument  for  reinforcing  judicial  cooperation  between  the  Member  States  of  the 
European  Union.  In  the  absence  of  powers  conferred  on  the  Community  by  the  Treaties  in 
matters  of  judicial  cooperation,  the  Member  States  were  obliged  to  use  treaty  instruments 
such as the Treaties concluded between themselves (the Brussels Convention of 1968 or the 
Rome Convention of 1980, for instance) or negotiated in various international organisations, 
the Hague Conference being foremost among them. 

But  with  the  Amsterdam  Treaty,  the  Member  States  decided  to  confer  direct  powers  on  the 
Community  to  adopt  instruments  and  take  action  for  judicial  cooperation  in  civil  matters. 
Since Amsterdam, the construction of the European law-enforcement area in civil matters no 
longer depends on international conventions being negotiated and ratified but on regulations, 
directives and decisions being adopted. 

The Hague Conference has thus lost one of the functions that it exercised over the decades: a 
forum where the Member States pursued an objective of closer integration with each other. It 
is interesting that Article 65 of the Amsterdam Treaty refers expressly to two specific areas 
previously governed by Hague Conventions extensively ratified by the Member States – the 
service of documents and the gathering of evidence, where two Community Regulations have 
now been adopted.  

Even so, the Hague Conference has not ceased to be of interest to the European Community. 
For the European Community this international organisation, which has absorbed many new 
members in recent years, represents an international forum for the development of a policy of 
cooperation  with  the  world  at  large  in  the  area  of  civil  justice.  This  is,  of  course,  why  the 
Community decided to apply for accession to it, and negotiations are ongoing, conducted by 
the European Commission.  

The experience of the Hague Conference in private international law and the discussion forum 
that it constitutes for a large number of countries are an inestimable source of inspiration for 
work being done in the European Community. 

This  is  especially  obvious  in  the  specific  case  of  maintenance  obligations,  where  the 
Commission is glad to have had the benefit of the Hague Conference’s preparatory documents 
and the discussions held in May 2003, where it had observer status. 

While  it  is  quite  possible  that  in  certain  areas  the  Hague  negotiations  might  yield  results 
reducing the need for a Community instrument – as would be the case for the conflict-of-laws 
rules  if  satisfactory  solutions  were  adopted,  provided  the  Community  could  accede  to  the 
Convention – the difference as regards the level of integration between the Member States as 
compared with non-member countries and the scale of the objectives pursued raises the need 
to seek specific Community solutions. Cooperation between the Member States, which have 
at their disposal not only a more fully consistent and more complete system of rules of direct 
jurisdiction and recognition of judgments but also an operational European Judicial Network, 
can without doubt be closer than with non-member countries. 

But  while  the  ambitions  and  possibilities  clearly  remain  different,  there  is  both  scope  and  a 
need  for  excellent  synergies  in  work  done  in  the  community  and  in  the  world  at  large 
respectively.  

The Commission has accordingly decided to launch a general debate on the two exercises by 
issuing this Green Paper. 

9 

 
 
  
 
4. 

SCOPE OF THE FUTURE INSTRUMENTS 

The scope of an instrument is difficult to define when its content has not yet been determined. 
Very different rules in matters such as the applicable law, legal aid, or cooperation might be 
adopted, depending on the scope of the instrument.  

But some of the questions that will arise can already be identified. They are the definition of 
maintenance obligations and the nature of the claims to which the future instruments should 
apply, the categories of decisions or acts, and the people to be affected. 

4.1. 

Concept of maintenance obligations 

On  the  concept  of  maintenance  obligations,  the  Court  of  Justice  of  the  European 
Communities, in a case concerning the Brussels Convention of 1968, took a broad view. In L. 
de  Cavel  v  J.  de  Cavel4  the  Court  held  that  the  “compensatory  payment”  after  divorce 
provided for by French law was to be treated as a maintenance obligation since it was “fixed 
on the basis of their respective needs and resources”. Likewise, in A. Van den Boogaard v P. 
Laumen,5 it held that “a decision rendered in divorce proceedings ordering payment of a lump 
sum and transfer of ownership in certain property by one party to his or her former spouse 
must be regarded as relating to maintenance ... if its purpose is to ensure the former spouse's 
maintenance”. But the Court felt no need to rule on maintenance obligations in the succession 
context.  For  the  avoidance  of  doubt,  it  might  be  necessary  to  define  the  maintenance 
obligations covered by a future European instrument.  

The  Hague  Conventions  and  the  New  York  Convention  do  not  define  maintenance 
obligations. But there is a specific provision in Article 8 of the 1973 Convention on the Law 
Applicable to Maintenance Obligations that removes all ambiguity as to the application of the 
Convention to maintenance obligations between divorced spouses.6  

4.2. 

Arrears 

The question of arrears, that is to say the recovery of maintenance awarded by a court but not 
actually paid, arises in a number of cases. 

Difficulties  can  arise  in  particular  if  the  law  of  the  country  where  the  judgment  is  to  be 
enforced provides that the judgment awarding maintenance can be enforced, after exequatur, 
only  for  future  payments,  or  permits  the  recovery  of  arrears  only  in  respect  of  a  limited 
period.  

4 
5 
6 

Third Chamber, Case 120/79 [1980] ECR 731 (judgment given on 6 March 1980). 
Fifth Chamber, Case C-220/95 [1997] ECR I-01147 (judgment given on 27 February 1997).  
Hague  Conference  on  Private  International  Law.  Preliminary  Document  No 1,  September  1995.  Note 
on  the operation  of  the Hague  Conventions  relating  to  maintenance obligations  and of  the  New York 
Convention on the Recovery Abroad of Maintenance, page 8, which states that the uncertain nature of 
the maintenance allowance to a divorced spouse (which, according to the State, may have the character 
of  maintenance  or  of  an  indemnity,  or  a  mixed  character)  justified  the  Convention  containing  a 
special solution. 

10 

 
 
  
 
                                                 
4.2.1.  The Community project 

Regarding  the  recognition  and  enforcement  in  one  Member  State  of  a  judgment  given  in 
another Member State, the abolition of the exequatur procedure would not change the current 
position whereby the effects of the judgment in the requested State are the same as in the State 
of origin.  

But as enforcement procedures are governed by the law of the requested State, the question of 
the  possibility  of  having  an  earlier  decision  enforced  and  therefore  obtaining  payment  of 
arrears can arise in States where the limitation rules are regarded as procedural. 

4.2.2.  Draft Hague Convention 

At  the  Special  Commission  in  May  2003,  the  question  of  arrears  was  raised,  and  several 
delegations pointed out that difficulties can arise where a judgment is to be enforced abroad 
on account of the major divergences between the different systems of law and the absence of 
clear rules in the common law systems.  

Article 11 of the Hague Convention of 1973 on the recognition and enforcement of decisions 
relating  to  maintenance  obligations  provides:  “If  a  decision  provided  for  the  periodical 
payment  of  maintenance,  enforcement  shall  be  granted  in  respect  of  payments  already  due 
and in respect of future payments”, and this could be taken over in the future Convention. 

On  the  international  scale  there  is  a  further  difficult  in  that  some  States  refuse  to  recognise 
and  enforce  certain  foreign  judgments  because  they  consider  that  the  court  that  gave  them 
lacked  jurisdiction,  and  they  accordingly  commence  new  proceedings  on  the  merits.  If  the 
new judgment does not order the payment of arrears, part of the amount due to the creditor 
under the initial judgement can no longer be claimed from the debtor.  

4.3. 

Persons to whom the future instruments should apply 

An analysis of the rules of domestic law in the European Union Member States shows that the 
types  of  relationship  that  can  generate  a  maintenance  obligation  between  two  people  vary 
from  one  State  to  another,  since  sometimes  only  parents  and  their  children  or  spouses  or 
ex-spouses are concerned whereas elsewhere the  family circle  is broader, extending even to 
cohabiters and “registered partners”. 

Moreover,  the  recovery  of  maintenance  is  sometimes  handled  by  public  agencies,  acting 
either  on  behalf  of  the  creditor  or  subrogated  to  the  creditor’s  rights  or  seeking  recovery  of 
welfare benefits paid to help the creditor meet his or her needs in the event of default by the 
debtor. But certain Member States refuse to cooperate in recovering sums that these agencies 
claim. The assistance given to maintenance creditors by public bodies, whatever its form, is 
based  on  a  policy  of  national  solidarity.  It  is  costly,  and  the  sums  paid  to  maintenance 
creditors should not be left to be borne definitely by States where the debtor has the means to 
settle the debt. 

11 

 
 
  
 
In  Gemeente  Steenbergen  v  Luc  Baten,7  the  Court  of  Justice  of  the  European  Communities 
interpreted the first paragraph of Article 1 of the Brussels Convention of 27 September 1968 
on  Jurisdiction  and  the  Enforcement  of  Judgments  in  Civil  and  Commercial  Matters  as 
meaning that “the concept of ‘civil matters’ encompasses an action under a right of recourse 
whereby a public body seeks from a person governed by private law recovery of sums paid by 
it by way of social assistance to the divorced spouse and the child of that person,  provided 
that the basis and the detailed rules relating to the bringing of that action are governed by the 
rules of the ordinary law in regard to maintenance obligations”. It also held that the concept 
of  ‘social  security’  does  not  encompass  the  action,  as  it  is  excluded  from  the  scope  of  the 
Convention.  But  it  held  that  “Where  the  action  under  a  right  of  recourse  is  founded  on 
provisions by which the legislature conferred on the public body a prerogative of its own, that 
action cannot be regarded as being brought in ‘civil matters’”.  

This question is also being considered in the Hague Conference. The two most recent Hague 
Conventions went for a broad scope, as they apply “to maintenance obligations arising from 
a family relationship, parentage, marriage or affinity, including a maintenance obligation in 
respect  of  a  child  who  is  not  legitimate”.  The  Convention  of  2  October  1973  on  the 
Recognition and Enforcement of Decisions Relating to Maintenance Obligations adds that it 
applies  “to  a  decision  rendered  by  a  judicial  or  administrative  authority  in  a  Contracting 
State in respect of a maintenance obligation arising ... between: 

1. 

2. 

 a maintenance creditor and a maintenance debtor; or 

a  maintenance  debtor  and  a  public  body  which  claims  reimbursement  of  benefits 
given to a maintenance creditor.” 

But  both  Conventions  provide  for  the  possibility  of  entering  reservations  as  to  their 
application  to  maintenance  obligations  between  persons  related  collaterally  or  by  affinity. 
Several States, including certain Member States of the European Union, have exercised this 
right when ratifying the Conventions.  

The question also arose at the first Special Commission to elaborate a draft Convention at the 
Hague  Conference  on  Private  International  Law  in  May  2003,  given  that  the  cooperation 
obligations imposed on the States by a broad scope would be very heavy.  

7 

Case C-271/00 (Fifth Chamber) [2002] ECR I-10489 (judgment given on 14 November 2002). 

12 

 
 
  
 
                                                 
It  could  also  arise  in  the  European  Community, as  certain  Member  States  seem  reluctant  to 
accept the idea of providing assistance to adults or public bodies in the enforcement of foreign 
judgment given for them. 

Question 1 

Should the future instruments:  

a. – define the concept of maintenance obligations? If so, how? 

b. – apply to the recovery of arrears?  

c. – apply to public bodies, in particular as regards cooperation? 

d. – apply to all persons likely to enjoy maintenance claims in the different legal systems? 

Should distinct solutions be adopted for the future Community instrument and the future 
Hague Convention? If so, what solutions? 

5. 

RULES OF PRIVATE INTERNATIONAL LAW 

5.1. 

Direct jurisdiction 

5.1.1.  Community rules 

As  has  already  been  seen,  Regulation  (EC)  No  44/2001  is  applicable  to  maintenance 
obligations, and Article 5(2) lays down special rules of jurisdiction alongside the general rule. 

When Regulation (EC) No 2201/2003 of 27 December 2003 concerning jurisdiction and the 
recognition and enforcement of judgments in matrimonial matters and the matters of parental 
responsibility,  repealing  Regulation  (EC)  No  1347/20008  was  being  drafted,  the  question 
arose  whether  Regulation  (EC)  No  44/2001  should  specify  that  actions  concerning  parental 
responsibility were included within the concept of actions relating to the status of persons so 
as  to  enable  the  relevant  authorities  ruling  on  such  cases  to  rule  also  on  the  related 
maintenance claims.  

The  possibility  of  joining  the  two  types  of  action,  concerning  parental  authority  and 
maintenance obligations, could be very useful. By way of example, judgments giving one of 
the parents custody of the child commonly award maintenance against the other parent, and 
the simplest solution is clearly to confer jurisdiction over the two questions to the authorities 
of the same State. 

8 

OJ L 338, 23.12.2003. 

13 

 
 
  
 
 
                                                 
At  the  end  of  the  day  the  conclusion  was  that  questions  relating  to  parental  authority  were 
already covered by Article 5(2) of Regulation (EC) No 44/2001. To avoid all ambiguity, the 
eleventh  recital  to  Regulation  (EC)  No  2201/2003  reads:  “Maintenance  obligations  are 
excluded  from  the  scope  of  this  Regulation  as  these  are  already  covered  by  Council 
Regulation  No  44/2001.  The  courts  having  jurisdiction  under  this  Regulation  will  generally 
have  jurisdiction  to  rule  on  maintenance  obligations  by  application  of  Article  5(2)  of 
Regulation (EC) No 44/2001”. 

Most  questions  relating  to  the  direct  jurisdiction  of  the  authorities  empowered  to  rule  on 
applications  for  the  determination  or  modification  of  maintenance  claims  have  thus  been 
settled as regards the Community. 

5.1.2.  Draft Hague Convention 

The  rules  set  out  above,  of  course,  do  not  apply  in  relations  between  Member  States  of  the 
European Union and non-member countries.  

And  the  various  international  conventions  applicable  in  certain  Member  States  of  the 
European Union do not contain provisions on the direct jurisdiction of the original court, that 
is  to  say  provisions  designating  the  country  whose  authorities  have  jurisdiction  to  rule  on 
applications  for  the  determination  of  maintenance  obligations  where  a  case  involves  an 
international element, and the question arose of the need to introduce such rules in the future 
Hague instrument. 

In  general  terms,  the  absence  of  rules  of  direct  jurisdiction  binding  the  States  parties  to  an 
international  instrument  leaves  a  degree  of  uncertainty  as  to  the  law  since  recognition  and 
enforcement can be refused abroad on the ground that the trial court lacked jurisdiction. The 
parties to a case might elect to go to the authorities of different States to obtain a judgment. 
There would then be a difficulty when recognition and enforcement are applied for abroad as 
each of the parties seeks the application of different judgments. The adoption of rules of direct 
jurisdiction would avoid these problems and indeed facilitate the recognition and enforcement 
of judgments. 

The  current  absence  of  uniform  rules  binding  the  Member  States  of  the  Hague  Conference 
generates two types of difficulty.  

5.1.2.1.  Initial applications 

Regarding initial applications, that is to say the original application to the relevant authority 
by  one  person  for  determination  of  a  maintenance  claim  against  another,  a  very  substantial 
number of Hague Conference Member States apply similar rules of jurisdiction (jurisdiction 
of the court or other authority for the debtor’s or creditor’s domicile or residence). This is the 
case of the Member States of the European Union and also of the Latin American States. 

But  other  States  do  not  recognise  the  jurisdiction  of  the  authorities  of  the  State  of  the 
maintenance creditor’s habitual residence. In the United States, for example, the courts for the 
creditor’s  domicile  or  residence  consider  that  the  American  constitutional  principle  of  due 
process  does  not  allow  them  to  accept  the  jurisdiction  if  they  do  not  have  a  sufficient 
connection with the debtor. 

14 

 
 
  
 
Where  a  maintenance  creditor  is  habitually  resident  in  the  United  States,  unlike  the  debtor 
who has no connection with that country, the American authorities ask the authorities of the 
State  of  the  debtor’s  domicile  or  residence  to  take  proceedings  for  the  determination  of  the 
maintenance obligation or the paternity of the child for whom maintenance is applied for. 

Since the New York Convention of 1956, Article 6 of which provides “The Receiving Agency 
shall, subject always to the authority given by the claimant, take, on behalf of the claimant, 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  …”,  is  not 
applicable  in  their  relations  with  the  United  States,9  where  it  has  not  been  ratified,  certain 
States consider that they are not required to provide the relevant cooperation. 

The  result  for  certain  American  litigants  who  cannot  afford  legal  representation  and  court 
costs abroad is that they cannot obtain a judgment determining their maintenance claim.  

5.1.2.2.  Applications for modification 

In the Member States of the Hague Conference, various rules of jurisdiction apply as regards 
applications for modification of the initial decision determining maintenance obligations. 

Regulation (EC) No 44/2001 allows creditors to sue the debtor either in the courts for their 
own  domicile  or  habitual  residence  or  in  the  courts  for  the  debtor’s  domicile,  whereas  the 
debtor can sue the creditor only in the courts for the creditor’s domicile. The Regulation also 
allows prorogation of jurisdiction. 

The Inter-American Convention of Montevideo of 15 July 1989 on support obligations makes 
a distinction between applications to increase the amount of the maintenance, applied for by 
the creditor, who has an option, and applications to discontinue or reduce support, generally 
made by the debtor, where the authorities of the State that set the amount of support have sole 
jurisdiction. But prorogation of jurisdiction is allowed. 

Certain  States  maintain  the  jurisdiction  of  the  court  that  rules  on  the  initial  claim,  provided 
one of the parties still resides within the area of its geographical jurisdiction at the time of the 
application for modification. 

Consequently  difficulties  can  arise  from  differences  between  the  rules  applicable  in  the 
different  systems  where  the  parties  change  their  domicile  or  residence.  This  can  generate 
conflicting  judgments  where  different  courts  are  recognised  as  having  jurisdiction,  and  in 
some cases  it can be impossible for the parties to obtain a judgment if  no  court  accepts  the 
jurisdiction.  

Certain  Commonwealth  States  have  a  system  in  which  all  judgments  on  the  initial  claim  or 
applications  for  modification  are  given  in  two  stages,  the  first  of  them  in  the  creditor’s 
country of residence and the second in the debtor’s country of residence. This system has also 
been  adopted  in  agreements  with  a  number  of  other  States  that  are  not  Commonwealth 
members. Obviously a system like this can operate only if the States of the creditor’s and the 
debtor’s  residence  apply  the  same  rules.  Where  the  State  of  the  debtor’s  residence  does  not 
have  this  system,  the  first  stage  of  the  trial  process  is  not  followed  up  and  there  can  be  no 
enforceable judgment. 

9 

But the United States has cooperation agreements with several States. 

15 

 
 
  
 
                                                 
Certain  States  consider  that  some  of  these  difficulties  could  be  settled  by  means  of  rules  of 
cooperation. 

Others, in their replies to the Hague Conference questionnaire or at the meeting of the Special 
Commission in May 2003, stated their wish for the future convention to contain rules of direct 
jurisdiction.  

Cases where the American courts decline to rule on claims by creditors residing within their 
geographical  jurisdiction  will  be  relatively  few  and  far  between  as  recent  legislation  has 
determined  a  fairly  extensive  list  of  cases  in  which  they  can  accept  the  jurisdiction  for 
maintenance obligations even though the debtor resides abroad. 

There  are  a  variety  of  possible  solutions:  insert  no  rules  of  direct  jurisdiction  in  the  future 
convention  but  include  provisions  only  for  modification  judgments,  endeavour  to  devise 
universally  acceptable  rules  without  weakening  the  principle  of  the  jurisdiction  of  the  court 
for the creditor’s place of residence, adopt rules inspired by Regulation (EC) No 44/2001 or 
the  Montevideo  Inter-American  Convention,  provide  for  the  possibility  of  a  general 
reservation or a reservation applicable solely in specific cases, or insert optional rules of direct 
jurisdiction in the future convention. 

Question 2  

Should the future Hague Convention:  

a.  –  contain  a  full  set  of  rules  of  direct  jurisdiction?  If  so,  what  rules  should  be 
adopted? 

b.  –  contain  rules  of  direct  jurisdiction  applicable  only  to  application  for 
modification of an earlier judgment? If so, what rules should be adopted? 

5.2. 

Recognition and enforcement of judgments 

As  regards  judgments  concerning  maintenance  obligations,  the  Programme  of  Measures  for 
the implementation of the principle of mutual recognition of decisions in civil and commercial 
matters,  as  already  seen,  expressly  provides  for  the  abolition  of  the  exequatur,  that  is  the 
procedure  that  must  be  followed  in  the  courts  of  a  State  to  have  judgments  given  in  other 
States  recognised  and  enforced.  Means  of  facilitating  the  recognition  and  enforcement  of 
judgments are also being sought at the Hague Conference. 

The  question  arises  differently  in  the  Community,  where  the  movement  of  judgments  has 
been fairly free for some years now, especially since Regulation (EC) No 44/2001 came into 
force, and as between Member States of the Hague Conference, which are not always bound 
by  the  same  Conventions,  which  have  sometimes  very  different  legal  systems  and  levels  of 
development and which are to be found in all four corners of the globe. 

But  in  both  cases  it  is  clearly  indispensable  to  seek  out  means  of  enabling  judgments  to  be 
recognised and enforced as quickly as possible. It must be borne in mind that the settlement of 
a  maintenance  claim  is  always  rather  urgent  and  that,  as  long  as  debtors  have  a  remedy 
allowing  them  to  defend  their  rights  in  the  event  of  a  dispute,  the  creditor’s  rights  must  be 
regarded as predominant.  

16 

 
 
  
 
5.2.1.  Community project 

5.2.1.1.  Abolishing the exequatur 

A  European  instrument  abolishing  the  exequatur  could  be  inspired  by  Council  Regulation 
(EC)  No  2201/2003  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in 
matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 
1347/2000,  or  by  the  draft  Regulation  establishing  a  European  enforcement  order  for 
uncontested claims. 

Both instruments provide that relevant judgments given by the courts of a Member State are 
to be recognised in the other Member States without any declaration of enforceability being 
required and without any possibility of opposing recognition.  

If the idea of abolishing the exequatur for maintenance judgments comes up, there will be the 
question whether there are difficulties to preclude it. 

Council  Regulations  (EC)  Nos.  1347/2000  and  44/2001,  which  contain  rules  relating  to  the 
exequatur  procedure,  provide  that  the  defendant  in  the  principal  action  may  oppose 
recognition and enforcement of judgments given in another Member State, in particular where 
they are manifestly contrary to the public policy of the requested State or where defence rights 
have not been respected. 

On the first point, the report on the study done for the European Commission shows that, even 
if  there  are  “several  potential  conflicts,  the  concept  of  international  public  policy  is  a  false 
problem  rather  than  a  real  barrier.  It  is  clear  from  the  national  reports  that  the  concept  is 
applied in only a handful of cases”. 

A few questions might remain for certain States, such as the recognition and enforcement of 
judgments  accepting  a  maintenance  claim  from  parties  to  the  new  forms  of  marriage  and 
partnership recently introduced. 

Regarding defence  rights, the  report  on the study done for the  European Commission states 
that no decisions taken in certain countries by mediators were notified. By the same token, the 
administrative authorities of certain countries issue certificates of entitlement unknown to the 
debtor.  Elsewhere  the  service  of  procedural  documents  is  handled  by  a  guardian  ad  litem 
where  the  debtor  cannot  be  traced,  which  certain  requested  States  would  regard  as  an 
unacceptable procedure. 

17 

 
 
  
 
The  question  is  whether  there  are  real  difficulties  here  and,  if  so,  what  solutions  would 
remove them. It must be borne in mind that the Mutual Recognition Programme calls for the 
adoption  in  certain  areas,  and  particularly  where  abolition  of  the  exequatur  is  planned,  of 
minimum  procedural  guarantees  to  ensure  that  the  requirements  for  a  fair  trial  are  strictly 
observed.  This  is  reflected  in,  for  instance,  Regulation  (EC)  2201/2003,  which  provides  for 
judgments  relating  to  rights  of  access  to  be  recognised  and  enforceable  in  another  Member 
State  without  the  need  for  a  declaration  of  enforceability  if  all  parties  concerned,  and  in 
particular the child, were given an opportunity to be heard.  

Question 3 

Are there considerations that might make it difficult to abolish the exequatur in the 
Community on grounds of: 

a. – public policy? 

b. – failure to respect defence rights? 

If so, how could these difficulties be solved? Should certain procedural guarantees 
be adopted or reinforced? 

5.2.1.2.  Provisional enforcement 

The  legislation  of  certain  Member  States  provides  that  judgments  relating  to  maintenance 
obligations are automatically provisionally enforceable; in other States’ systems, provisional 
enforcement is merely an option for the courts; and in some systems the possibility does not 
exist.  Where  there  is  no  provision  for  provisional  enforcement,  it  is  sometimes  possible  for 
the  creditor  to  obtain  a  provisional  decision  applicable  from  the  beginning  of  the  procedure 
until the judgment on the merits has become final.  

Generally  speaking,  the  very  subject-matter of a  judgment making a  maintenance order, the 
aim  of which  is to enable  creditors to cover their basic daily  needs, would justify a general 
possibility for the court to order provisional enforcement, and consequently for the judgment 
to be enforced immediately after being given.  

The  possibility  of  ordering  payment  of  maintenance  by  a  decision  made  in  the  course  of 
proceedings until final judgment is given on the merits is even more effective since it enables 
the creditor to be paid maintenance from the very beginning of the proceedings until the time 
allowed for an appeal has expired or an appeal has been brought, but it would not genuinely 
facilitate  the  recovery  of  maintenance  abroad  as  it  would  require  the  enforcement  of  two 
successive  judgments.  Generally  speaking,  where  maintenance  claims  are  to  be  recovered 
abroad, the existence of time limits in judicial cooperation procedures makes it all the more 
necessary to seek means of expediting the procedure as a whole. Provisional enforcement of 
the judgment at least assures the creditor that the judgment can be served immediately on the 
relevant authority in the debtor’s country of residence for enforcement.  

18 

 
 
  
 
 
There  are  a  number  of  reasons  why  it  is  clearly  difficult  to  contemplate  provisional 
enforcement  being  available  only  for  judgments  likely  to  come  up  for  enforcement  abroad. 
After all, when judgment is given, the situation may not already be an international one. But 
the fact remains that there is no good reason for applying solutions that are less favourable to 
creditors simply on the ground that the debtor is abroad.  

It  might  be  possible  to  envisage  making  provisional  enforcement  generally  available  for 
judgments relating to maintenance obligations given in the Member States. 

This,  incidentally,  is  the  solution  recommended  by  the  study  done  for  the  Commission  on 
making more efficient the enforcement of judicial decisions within the European Union.10 

Article  41  of  Council  Regulation  (EC)  No  2201/2003  concerning  jurisdiction  and  the 
recognition and enforcement of judgments in matrimonial matters and the matters of parental 
responsibility,  repealing  Regulation  (EC)  No  1347/2000,  relating  to  access  rights,  provides: 
“Even if national law does not provide for enforceability by operation of law of a judgment 
granting access rights, the court of origin may declare that the judgment shall be enforceable, 
notwithstanding any appeal”. Article 42, relating to the return of children removed illegally, 
contains a similar provision. 

These provisions could be taken as a model for a future European instrument on maintenance 
obligations. But a provision merely giving the court the option of ordering enforcement might 
not be sufficient, given the interests at stake, and it would be better to provide for judgments 
relating to maintenance obligations to be automatically eligible for provisional enforcement. 

Question 4  

Are  there  specific  difficulties  that  would  preclude  the  principle  of  automatic 
provisional enforcement of judgments relating to maintenance obligations? 

5.2.1.3.  Enforcement procedure as such 

In certain States, the facilities for enforcing a judgment awarding maintenance can be put into 
effect  by  a  professional  officer  as  soon  as  the  judgment  is  enforceable;  in  others,  once  the 
judgment has been given and has become enforceable, it is enforced by officials of the court 
under  the  authority  of  a  judge,  who  must  authorise  enforcement  by  a  decision  that  may  be 
appealable. This procedure is also applicable to foreign judgments declared enforceable by the 
exequatur procedure.  

The  need  for  a  judicial  procedure  for  enforcement  and  the  redress  procedures  and  remedies 
available  to  the  defendant  are  probably  serious  brakes  on  the  enforcement  of  the  judgment, 
not  only  because  enforcement  can  be  suspended  during  the  proceedings  but  also,  more 
generally, because of the long time taken by proceedings in some Member States.  

10 

Accessible  on 
http://europa.eu.int/comm/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm 

the  Directorate-General 

the  website  of 

Justice  and  Home  Affairs  at: 

19 

 
 
  
 
                                                 
The  recommendations  of  the  Tampere  European  Council  calling  on  the  Council  to  abolish 
“the  intermediate  measures  which  are  still  required  to  enable  the  recognition  and 
enforcement  of  a  decision  or  judgment  in  the  requested  State …  for  maintenance  claims”11 
and  to  “establish  ...  special  common  procedural  rules  for  simplified  and  accelerated 
cross-border litigation on ... maintenance claims”12 are difficult to reconcile in certain cases 
with  the  slowness  of  the  procedures  for  authorising  enforcement  of  a  judgment  in  an  area 
where speedy enforcement is truly necessary.  

The first question is whether it might be possible to simplify and expedite the procedure in the 
court of enforcement. It might be possible to simplify certain formalities or to set time limits. 

Without  wishing  to  deprive  the  debtor  of  all  the  possibilities  for  challenging  seizure  of  his 
assets  where  he  has  settled  the  debt  in  full  or  if  he  voluntarily  makes  the  maintenance 
payments  to  which  he  has  been  ordered,  for  example,  it  could  be  provided  that  no  action 
would  basically  suspend  enforcement.  Suspension  might,  of  course,  be  warranted  in  some 
cases, but would then be ordered only exceptionally, on application. 

Question 5  

As regards the enforcement of judgments, can provision be made for: 

a. simplification of procedures for the enforcement of judgments that exist in certain 
Member States? Time limits to be set? 

b. enforcement to be suspended only in exceptional cases? 

5.2.2.  Enforcement measures  

The study on making more efficient the enforcement of judicial decisions within the European 
Union, mentioned above, suggests that the principle of territoriality of enforcement measures 
be abandoned in favour of a principle of universality and of a degree of mutual recognition of 
enforcement measures. 

It recommends a number of improvements, some of which could usefully be deployed in the 
recovery of maintenance claims. 

In particular it suggests introducing a European Statement of Assets for debtors, based on the 
measure  that  exists  in  certain  European  Union  Member  States  and  enables  creditors  to 
question  the  other  side  on  their  assets.  It  also  mentions  a  European  Bank  Account  Seizure 
Order  on  the  basis  of  an  enforceable  judgment  that  could  be  enforced  abroad.  Such 
innovations,  the  former  in  particular,  would  be  very  useful  for  the  recovery  of  maintenance 
claims. 

But  in  this  particular  area  it  could  also  be  provided  that  a  salary  attachment  order  in  one 
European  Union  Member  State  is  enforceable  without  further  proceedings  in  the  other 
Member States.  

11 
12 

Tampere European Council. Presidency Conclusions, point 34. 
Tampere European Council. Presidency Conclusions, point 30. 

20 

 
 
  
 
                                                 
Such an innovation would not necessarily be useful for the recovery of claims in States where 
court  bailiffs  are  responsible  for  enforcement  measures,  but  elsewhere  it  would  save  time 
since it would obviate the need to apply to a court or other authority for an attachment order 
on the debtor’s salary. 

Question 6  

Could it be provided that a salary attachment order against a maintenance debtor in 
one European Union Member State is enforceable without further proceedings in the 
other Member States? 

What other specific measures would be helpful?  

5.2.3.  Draft Hague Convention 

In  accordance  with  the  guidelines  agreed  by  the  General  Affairs  Commission  of  the  Hague 
Conference  in  2000  and  2002,  the  draft  Convention  should  basically  contain  rules  on  the 
recognition  and  enforcement  of  judgments  concerning  maintenance  obligations,  based  on 
those  in  the  two  Conventions  adopted  by  it  in  1958  and  1973.  In  their  replies  to  the 
questionnaire  sent  them  by  the  Conference,  a  substantial  majority  of  the  Member  States 
recommended  the  insertion  of  such  rules  in  the  future  convention.  But  a  variety  of  delicate 
questions arise here. 

5.2.3.1.  Procedures for recognition and enforcement 

The  Permanent  Bureau  of  the  Hague  Conference  has  argued  in  favour  of  abolishing  the 
exequatur,  as  provided  by  Articles  41  and  42  of  Council  Regulation  (EC)  No  2201/2003 
concerning  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in  matrimonial 
matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, 
though it does wonder about the conditions in which the certificate from the State of origin 
that is to accompany the judgment under the Regulation is to be issued. 

This  suggestion  has  prompted  a  great  variety  of  reactions,  as  some  delegations  agree  to  the 
abolition of the exequatur provided the debtor still has a redress procedure after the judgment 
has  been  served  by  the  authorities  of  the  requested  State  or  at  the  enforcement  stage, 
following the process familiar in certain common-law systems, or by the simplified exequatur 
procedure provided for by Council Regulation (EC) No 44/2001. Others argue that abolishing 
the  exequatur  is  not  possible  without  harmonisation  of  the  conflict-of-laws  and  jurisdiction 
rules,  or  that  it  would  be  impossible  internationally  on  account  of  the  disparities  between 
bodes of domestic legislation.  

21 

 
 
  
 
Many delegations have expressed interest in using quicker procedures.  

Question 7  

Should  the  future  Hague  Convention  provide  for  a  simplified  exequatur  system 
similar to the one provided for by Regulation No 44/2001? What other solutions are 
possible for facilitating and accelerating recognition and enforcement of judgments? 

5.2.3.2.  Indirect jurisdiction as a condition for recognition and enforcement 

The  Hague  Conventions  on  the  recognition  and  enforcement  of  judgments  relating  to 
maintenance  obligations  contain  rules  of  indirect  jurisdiction  on  which  their  application 
depends. Both provide for the jurisdiction of the courts for the debtor’s or creditor’s habitual 
residence and the court to whose jurisdiction the debtor submits. The 1973 Convention further 
provides that the authority of a Contracting State which has given judgment on a maintenance 
claim  shall  be  considered  to  have  jurisdiction  for  the  purposes  of  the  Convention  if  the 
maintenance  is  due  by  reason  of  a  divorce  or  a  legal  separation,  or  a  declaration  that  a 
marriage  is  void  or  annulled,  obtained  from  an  authority  of  that  State  recognised  as  having 
jurisdiction in that matter, according to the law of the State addressed. 

There is no controversy about the criteria of the debtor’s habitual residence or submission to 
the  jurisdiction  of  the  court  in  which  the  creditor  brought  the  action,  which  are  universally 
accepted or at least could be in the context of an international agreement. 

But the criterion of the creditor’s habitual residence raises difficulties in relations between the 
United  States  and  all  the  other  Member  States  of  the  Hague  Conference.  The  Hague 
Conference  suggests  adopting  a  “fact-based”  approach,  whereby  “Either  State  is  in  effect 
permitted to apply its own standards. In other words, a decision given in the originating State 
will be recognised and enforced if, on the same facts, the exercise of jurisdiction would have 
been  possible  in  the  requested  State.  Under  this  principle,  it  would  not  matter  what 
jurisdictional  bases  the  requesting  State’s  court  articulated  when  it  rendered  the  judgment. 
The crucial question is whether, regardless of the reason stated by the court of the requesting 
State, the facts of the case would support jurisdiction under the rules of the requested State. If 
so,  the  judgment  should  be  recognised.  If  not,  the  requested  State  should  take  appropriate 
steps to establish a new decision.”13 

The  fact-based  approach  to  indirect  jurisdiction  raises  a  practical  difficulty,  since  it 
presupposes  that  when  examining  the  application  for  recognition  and  enforcement,  the 
relevant  authority  of  the  requested  State  has  adequate  information  on  the  grounds  on  which 
the  trial  court  assumed  jurisdiction  to  be  able  to  make  the  comparison  with  the  rules  of 
jurisdiction in its own law. This would require the trial court, at the time of judgment, to be 
familiar with the criteria for jurisdiction taken by the court in the State that is to be requested 
and to take pains to make clear in the judgment that this or that criterion was indeed present. 
The difficulty lies in the fact that when the judgment is given the situation is not necessarily 
an international one.  

13 

Hague  Conference  on  Private  International  Law,  preliminary  document  No  3,  Towards  a  new  global 
instrument  on  the  international  recovery  of  child  support  and  other  forms  of  family  maintenance. 
Report  by  William  Duncan,  §76,  citing  an  essay  by  George  G.  Spector  intituled  Towards  an 
accommodation of divergent jurisdictional standards for the determination of maintenance obligations 
in private international law. 

22 

 
 
  
 
                                                 
The  Permanent  Bureau  report  suggests  that  the  information  that  could  help  the  court 
entertaining the application for recognition and enforcement to rule on the indirect jurisdiction 
of the original court be sent by the authorities of the requesting State by way of cooperation 
measures.  The  question  is  obviously  linked  to  the  functions  that  could  be  entrusted  to  the 
authorities in the Contracting States responsible for cooperation. But this still depends on their 
having the means of gathering the requisite information. 

The Permanent Bureau of the Hague Conference proposes adopting the following provisions: 

“1.  A maintenance decision made by a court / authority in one Contracting State 
(the State of origin) shall be recognised and enforced in all other Contracting 
States if – 

a. 

b. 

c. 

d. 

2. 

 ...; 

 ...; 

 the  facts  in  the  case  would,  mutatis  mutandis,  have  supported  jurisdiction 
under the rules of the requested State; or 

 the  creditor  was  (habitually)  resident  in  the  State  of  origin  at  the  time 
proceedings were instituted. 

A Contracting State whose own authorities or courts are not permitted to make 
a maintenance decision based solely on the residence of the creditor within the 
jurisdiction may make a reservation in respect of paragraph 1(d).”14 

States  making  the  reservation  provided  for  by  paragraph  2  should  undertake  to  commence 
new proceedings to obviate this difficulty. But it must be remembered that this solution would 
cause  two  distinct  decisions  to  coexist,  having  effect  in  different  States,  with  all  the 
difficulties that could flow from this situation if the debtor changes residence. It might also 
make the recovery of part of the arrears impossible.  

Question 8  

Would the “fact-based” approach be workable in practice? 

Is there another preferable solution? If so, what solution?  

In  the  course  of  discussions  at  the  Special  Commission  in  The  Hague  in  May  2003,  three 
other criteria for indirect jurisdiction were considered – the common nationality of the parties, 
the  divorce,  or  questions  related  to  parental  responsibility.  The  possibility  of  leaving  the 
parties with a degree of autonomy was also raised. 

14 

Hague  Conference  on  Private  International  Law,  preliminary  document  No  3,  Towards  a  new  global 
instrument  on  the  international  recovery  of  child  support  and  other  forms  of  family  maintenance. 
Report by William Duncan, § 87. 

23 

 
 
  
 
                                                 
None of the delegations wished to maintain the criterion of the parties’ common nationality. 
But the indirect jurisdiction of a court hearing an action to determine personal status did not 
seem to raise difficulties. And this solution would be perfectly compatible with Community 
legislation.  As  for  the  autonomy  of  the  parties,  some  experts  felt  it  would  be  dangerous  to 
allow  complete  freedom  in  an  area  where  the  relative  strengths  of  the  parties  might  be 
seriously out of balance and consequently to allow the indirect jurisdiction of a court agreed 
on by debtor and creditor. 

Question 9 

Should indirect jurisdiction be based on: 

a.  the  solution  adopted  by  Article  8  of  the  Hague  Convention  of  1973 on  the 
Recognition and Enforcement of Decisions relating to Maintenance Obligations?  

b. the court agreed on by debtor and creditor? Should the parties’ freedom of choice 
be limited? 

5.2.3.3.  Grounds for refusing recognition 

The Hague Conventions of 1958 and 1973 provide that recognition and enforcement may be 
refused if they are manifestly incompatible with the public policy ("ordre public") of the State 
addressed or if the decision is incompatible with a decision rendered in the State addressed. 
The  1973  Convention  adds  two  further  grounds  –  fraud  in  connection  with  a  matter  of 
procedure  and  the  existence  of  proceedings  between  the  same  parties  and  having  the  same 
purpose. 

At  the  Special  Commission  in  The  Hague  in  May  2003,  several  delegations  supported 
confining  the  grounds  for  refusing  recognition  and  enforcement  basically  to  violation  of 
defence rights, violation of public policy, conflicting decisions and lis pendens. 

But  the  question  of  conflicts  of  decisions  is  particularly  acute  in  matters  of  maintenance 
obligations, as several successive decisions can be given perfectly correctly as the respective 
situations  of  the  parties  evolve.  Obviously  priority  must  be  given  to  recognition  and 
enforcement  of  the  latest  decision,  provided  it  was  given  by  the  proper  authority.  If  this 
question is not settled by the introduction of a rule of direct jurisdiction in the Convention, it 
will have to be settled by a rule of indirect jurisdiction.  

Apart  from  that,  most  States  seem  to  be  in  broad  agreement  on  rejecting  the  principle  of 
decisions being reviewed as to substance by the requested State. 

But it seems that when the authorities of certain European Union Member States are requested 
to  recognise  and  enforce  a  judgment  given  on  the  merits,  whether  in  a  European  Union 
Member State or elsewhere, they commence new proceedings to determine the maintenance 
claim,  even  though  the  original  judgment  meets  the  conditions  for  recognition  and 
enforcement, arguing that the judgment cannot be enforced  as the debtor is insolvent or the 
respective situations of the parties have changed.  

24 

 
 
  
 
This  practice  is  not  compatible  with  Regulation  (EC)  No  44/2001  or  with  the  Hague 
Conventions,  which  prohibit  reviewing  the  substance  of  foreign  judgments  at  the  exequatur 
stage, or even with the New York Convention of 1956, which allows fresh proceedings only 
within the limit of the powers conferred by the creditor.  

Question 10  

At the exequatur stage: 

a.  what  grounds  for  refusing  recognition  and  enforcement  should  be  in  the  future 
Convention?  

b. in the event of a conflict of judgments, how should the judgment to be enforced 
be distinguished?  

c. should there be a strict prohibition on reviewing judgments given in the State of 
origin,  or  should  exceptions  be  allowed,  and  if  so,  in  what  circumstances  and  for 
what purposes? 

5.3. 

Applicable law 

Neither  Regulation  (EC)  No  44/2001  nor  any  other  Community  instrument  contains 
conflict-of-law rules concerning maintenance obligations. Article 1 §2 b), third indent, of the 
Rome Convention of 19 June 1980 on the law applicable to contractual obligations, the only 
instrument  of  civil  law  applicable  between  the  European  Union  Member  States  containing 
conflict-of-law  rules,  excludes  from  its  scope  “rights  and  duties  arising  out  of  a  family 
relationship, parentage, marriage or affinity, including maintenance obligations in respect of 
children who are not legitimate”. 

The Hague Conventions of 1956 and 1973 on the law applicable to maintenance obligations 
having been ratified by only some of the European Union Member States, the conflict-of-law 
rules applicable in the European law-enforcement area are not currently harmonised.  

It  was  planned  that  the  work  in  hand  at  The  Hague  would  extend  to  this  question  as  the 
General  Affairs  Special  Commission  in  May  2000  decided  to  prepare  an  exhaustive 
convention  improving  the  existing  Conventions,  and  in  particular  the  two  Conference 
Conventions on the law applicable to maintenance obligations. 

Similar questions arise in the Community and in the world at large. But there is the question 
whether  different  responses  reflecting  the  specific  features  of  the  two  exercises  might  be 
called for in the Community draft and the future Hague Convention. 

25 

 
 
  
 
5.3.1.  The situation today 

There are major divergences in the domestic legislation of States, including European Union 
Member States, as regards maintenance obligations.  

The age at which children cease to be eligible for a maintenance claim on their parents varies 
from one State to another. The legislation of certain countries does not use an age criterion but 
looks at children’s situations and their ability to cover their needs.  

Some legal systems provide that at least in certain circumstances one of the divorced spouses 
has a maintenance claim against the other. But other systems apply the contrary principle. 

Certain  legislations  allow  maintenance  obligations  between  different  family  members  or 
unrelated “near ones”, whereas others confine maintenance claims to children and spouses. 

The  rules  of  jurisdiction  in  the  different  legal  systems  generally  offer  the  parties  an  option 
between  the  courts  of  different  States,  including  the  State  of  the  creditor’s  or  defendant’s 
residence  or  domicile.  The  domestic  legislation  of  many  Hague  Conference  Member  States 
recognises  the  jurisdiction  of  the  courts  of  nationality  or  of  domicile in  the  common-law 
sense. The European legislation offers litigants a variety of possibilities through the combined 
effects  of  Regulations  (EC)  Nos  44/2001  and  1347/2000.  The  attempt  to  harmonise  the 
conflict-of-law rules applicable to situations with a foreign element so as to improve certainty 
in  the  law  is  therefore  justified  both  in  the  Community  and  in  the  Hague  Conference  on 
Private International Law. 

Yet the two Hague Conventions on the law applicable to maintenance obligations have been 
ratified by very few States, most of which are European Union Member States. The earliest of 
the  Conventions,  which  was  to  be  replaced  by  the  most  recent  one,  remains  applicable  in 
relations between States that failed to ratify the “successor”.  

This  situation  is  obviously  unsatisfactory  in  more  than  one  way.  The  existence  of  two 
Conventions binding different States is deleterious to the foreseeability of solutions and is a 
source of difficulty for practitioners. The absence of treaty-based rules between certain other 
States aggravates matters. 

The  Special  Commissions  that  met  in  1995  and  1999  showed  up  a  number  of  difficulties 
flowing from the content of the Conventions.  

The  case-law  consequently  tends  to  diverge  as  there  are  no  rules  designating  the  law 
applicable to paternity, where certain courts apply the law designated by their conflict rules 
while others apply the law applicable to the maintenance obligation. In more general terms, 
there is the question of the law applicable to maintenance entitlement. 

Article  8  of  the  1973  Convention  provides  that  “the  law  applied  to  a  divorce  shall,  in  a 
Contracting  State  in  which  the  divorce  is  granted  or  recognised,  govern  the  maintenance 
obligations  between  the  divorced  spouses  and  the  revision  of  decisions  relating  to  these 
obligations”. But this rule, which has the advantage of securing continuity in the treatment of 
a situation under the same law and thus secures certainty as to the law, was disapplied by a 
judgment of the Supreme Court of the Netherlands on 21 February 1997 on the ground that it 
was not incompatible with the possibility for the parties to choose the applicable law.  

26 

 
 
  
 
Lastly, the question of the law applicable to limitation periods has prompted difficulties at the 
stage  of  the  application  for  recognition  and  enforcement  or  of  the  implementation  of 
enforcement measures abroad. Certain legal systems regard limitation as a matter of substance 
governed by their own conflict rules, whereas others see it as a rule of procedure, governed by 
the lex fori.  

At  the  Special  Commission  in  The  Hague  in  May  1999,  several  delegations  representing 
States  in  the  Roman-Germanic  legal  tradition  were  in  favour  of  inserting  in  the  new 
Convention conflict rules inspired by the rules in the 1973 Convention. 

Several  arguments  have  been  put  forward  for  this,  in  particular  the  need  to  unify  and 
modernise the current convention-based rules and adapt them in such a way as to make them 
acceptable to all Conference Member States.  

The representatives of the common-law countries, on the other hand, argued that there would 
be  difficulties  for  the  courts  and  additional  costs  for  the  parties  as  a  result  of  applying  a 
foreign law. 

Several solutions were considered, including the insertion in the future Convention of a full 
set of conflict rules, or just of a few rules to amplify the existing Conventions, the absence of 
conflict  rules  and  the  adoption,  between  States  wishing  to  be  bound  by  such  rules,  of  a 
Protocol on the law applicable to maintenance obligations.  

The  attempt  to  come  up  with  harmonised  solutions  could  be  more  complex  in  the  broader 
context than in the narrower context of the European Union Member States.  

Question 11  

Should the future Community instrument or the future Hague Convention contain: 

a. a full set of conflict-of-laws rules? 

b. conflict rules governing specific problems? 

5.3.2.  Questions to be settled by conflict rules 

5.3.2.1.  The principal question 

The 1973 Hague Convention, the most recent and the fullest of them, contains a multi-stage 
system  under  which  maintenance  obligations  are  governed  by  the  law  of  the  maintenance 
creditor’s  habitual  residence  or,  in  the  alternative,  if  that  law  does  not  allow  the  creditor  to 
qualify for maintenance, by the common national law of the debtor and the creditor, or, if that 
law does not give the creditor satisfaction, the lex fori. 

The Montevideo Convention provides for a different system, since Article 6 reads: 

“Support obligations, as well as the definition of support creditor and debtor, shall 
be  governed  by  whichever  of  the  following  laws  the  competent  authority  finds  the 
most favourable to the creditor: 

a) 

b) 

that of the State of domicile or habitual residence of the creditor; 

that of the State of domicile or habitual residence of the debtor.” 

27 

 
 
  
 
The  law  of  certain  countries  also  provides  for  a  multi-stage  approach  or  for  a  system  like 
Montevideo. In others, the law of the creditor’s nationality governs maintenance entitlement. 

At the meeting of the Special Commission in The Hague in May 2003, it was observed that if 
the jurisdiction of the creditor’s lex fori was accepted, along with the application of the law of 
the creditor’s domicile or residence, the lex fori would be applicable, and this solution would 
bring the civil and common-law systems into line. 

The  routine  use  of  the  domestic  lex  fori  was  also  contemplated  since  at  the  stage  of  the 
original claim it is the creditor who chooses the court and it is therefore up to the creditor to 
decide which is the most favourable law. But this solution would encourage forum-shopping. 

Some  commentators  have  also  pointed  out  that  States  applying  Islamic  law,  for  example, 
might wish to ratify the future Convention and that the best solution for them would be the lex 
fori, including its rules of private international law. 

Question 12  

What general rules of conflict of laws should be adopted, internationally and for the 
Community, as regards maintenance obligations?  

As  regards  maintenance  obligations  between  former  spouses,  the  question  is  whether  the 
solution  provided  for  by  Article  8  of  the  1973  Hague  Convention  should  be  maintained.  It 
came in for much criticism at the time but does not seem to have caused major difficulties in 
practice. 

The  Hague  Conference  has  considered  the  idea  of  leaving  scope  for  the  autonomy  of  the 
parties  on  the  basis  of  the  ruling  of  the  Dutch  Supreme  Court,  allowing  the  parties  to 
designate a law applicable to their maintenance obligations differing from the law applicable 
to their divorce. If this solution were felt to be appropriate, the question would arise whether 
the parties should be entirely free or whether there should be some ground rules to ensure that 
one party cannot impose the application of a law that is particularly unfavourable to the other. 

28 

 
 
  
 
As for divorces ordered by a court having jurisdiction under Regulation (EC) No 1347/2000, 
rules  of  applicable  law  could  in  future  be  established  by  a  Community  instrument,  and  the 
question  of  maintenance  obligations  between  former  spouses  will  be  considered  in  that 
context. 

Question 13 

What  rule  to  solve  the  conflict  of  laws  relating  specifically  to  maintenance 
obligations  between  spouses  or  former  spouses  should  be  inserted  in  the  future 
Hague Convention? 

Question 14 

Should the parties be allowed to choose the applicable law, and if so, should there be 
rules applicable to the choice?  

5.3.2.2.  Scope of the applicable law 

The  1973  Hague  Convention  and  the  1989  Montevideo  Convention  provide  that  the 
applicable  law  determines  the  status  of  creditor  and  debtor,  who  is  entitled  to  institute 
maintenance  proceedings,  and  the  time  limits  for  their  institution.  The  Montevideo 
Convention adds that the applicable law governs the amount of support due and the timing of 
and  conditions  for  payment  and  other  conditions  necessary  for  enjoyment  of  the  right  to 
support.  The  Hague  Convention  provides  that  the  law  applicable  to  the  maintenance 
obligation  also  determines  the  extent  of  the  obligation  of  a  maintenance  debtor,  where  a 
public body seeks reimbursement of benefits provided for a creditor. 

Under the conflict rules of certain Hague Conference Member States, however, the law of the 
creditor’s  domicile  governs  the  question  of  maintenance  claims  and  the  law  of  the  debtor’s 
domicile  governs  the  determination  of  the  conditions  of  the  maintenance  claim,  and  in 
particular the amount awarded.  

In certain countries, maintenance obligations are determined on the basis of sometimes highly 
complex scales of rates. In others, on the other hand, they are determined on the basis of the 
creditor’s needs and the debtor’s resources in accordance with the principle taken by the 1973 
Hague Convention. 

The question of how maintenance obligations are determined is particularly important when 
creditor  and  debtor  reside  in  countries  with  very  different  standards  of  living.  The  most 
serious difficulty arises where the creditor resides in a country with a high standard of living 
while the salary paid in the debtor’s country of residence is too low to cover the maintenance.  

Article  11  of  the  1973  Hague  Convention  provides:  “However,  even  if  the  applicable  law 
provides otherwise, the needs of the creditor and the  resources  of  the debtor shall be taken 
into account in determining the amount of maintenance”. Implementing this rule, of course, 
requires  the  authority  determining  the  maintenance  obligation  to  have  the  requisite 
information,  which  might  involve  assistance  from  foreign  authorities.  But  it  would  appear 
difficult to go any further internationally. On the other hand it might be possible to go for a 
degree of approximation of the rules for determining the amount of maintenance obligations 
as between European Union Member States. 

29 

 
 
  
 
Moreover,  many  legal  systems  have  an  index-linking  scheme  that  enables  maintenance 
obligations  that  have  been  set  to  be  adapted  to  fluctuations  in  the  cost  of  living.  The 
procedures for calculating such adjustments vary, of course, from one country to another; they 
are difficult to understand, and in some cases impossible to apply in a foreign country in the 
absence of a corresponding reference scale. 

It is difficult to envisage international unification of index-linking schemes for maintenance 
awards. But it might be possible to imagine it in the Community context. 

Question 15 

What questions should be governed by the system of conflict of laws? 

Question 16 

How  should  the  question  of  setting  the  amount  of  maintenance  obligations  be 
approached, in particular in the Community? 

Question 17 

How  should  the  question  of  index-linking  maintenance  obligations  be  approached, 
in particular in the Community?  

5.3.2.3.  Specific questions 

5.3.2.4.  Establishment of “family relationships”. 

Neither the Hague Conventions nor the Montevideo Convention contain provisions on the law 
applicable  to  this  question.  The  1973  Hague  Convention,  applicable  to  “maintenance 
obligations  arising  from  a  family  relationship,  parentage,  marriage  or  affinity,  including  a 
maintenance  obligation  in  respect  of  a  child  who  is  not  legitimate”  provides  even  that 
“Decisions  rendered  in  application  of  this  Convention  shall  be  without  prejudice  to  the 
existence of any of the relationships referred to in Article 1.” 

The application of different conflict rules by the courts in different countries can, of course, 
engender two paternity decisions in relation to the same child or the recognition of a marriage 
in one State that is not regarded as valid in another. 

On the paternity issue, the question can arise in different terms depending whether States give 
different  effects  to  decisions  given  in  paternity  suits  and  decisions  in  maintenance 
proceedings where paternity arises as a secondary issue. 

The  Hague  Commission  meeting  in  1995  to  study  the  implementation  of  the  maintenance 
obligations Conventions recommended that the preliminary issue of paternity be governed by 
the  law  applicable  to  the  maintenance  obligation,  but  it  does  not  seem  to  have  had  much 
influence  on  the  case-law  in  States  where  the  status  of  persons  is  governed  by  the  rules  of 
private international law.  

At the Special Commission in May 2003, there was some support for adopting a rule whereby 
the preliminary issue should be governed by the law applicable to the maintenance obligation, 
but  others  felt  that  a  decision  on  the  paternity  issue  given  as  a  secondary  decision  should 
never be valid erga omnes. 

30 

 
 
  
 
5.3.2.4.1 Mobility conflict  

As  has  been  seen,  where  the  creditor  or  debtor  changes  domicile  or  habitual  residence,  this 
causes  difficulties  as  to  jurisdiction  over  applications  for  modification  of  earlier  judgments. 
The question of the applicable law in such cases now arises.  

The  1973  Hague  Convention,  under  which  the  domestic  law  of  the  maintenance  creditor’s 
habitual residence is basically applicable, provides: “In the case of a change in the habitual 
residence of the creditor, the internal law of the new habitual residence shall apply as from 
the moment when the change occurs”. 

This  solution  has  its  advantages,  as  the  creditor’s  situation  can  be  adapted  to  the  new 
environment. It can also be seen as inciting creditors to change residence to obtain a change in 
their claim. The principal conflicts rule to be adopted here will have some effect on this point.  

5.3.2.4.2 Agreements between the parties 

Certain  States  encourage  agreements  between  parties  whereas  others  prohibit  them.  The 
question therefore arises as to the law applicable to them in terms of both form and substance. 

In  the  absence  of  specific  pointers,  it  is  not  clear  whether  they  are  governed  by  the  Hague 
Conventions. In any event the question remains entirely open for States that are not parties to 
the Conventions. 

5.3.2.4.3 Limitation 

Limitation  is  a  procedural  matter  in  some  legal  systems  and  a  substantive  matter  in  others. 
The solution adopted by the 1973 Hague Convention and the Montevideo Convention is that 
the limitation of a maintenance action is a matter of substance and therefore governed by the 
law applicable to the maintenance obligation. 

But  these  instruments  do  not  expressly  address  the  issue  of  limitation  of  exequatur  and 
recovery actions, and it is clear from the case-law that their status as procedural or substantive 
matters is interpreted in divergent ways.  

One  specific  difficulty  is  that  maintenance  obligations  can  subsist  between  two  parties  for 
many years and the need for exequatur or enforcement abroad may become apparent only a 
long time after the original judgment. 

31 

 
 
  
 
At  the  Special  Commission  in  The  Hague  in  May  2003,  many  delegations  stated  that  they 
wished  the  various  aspects  of  the  problem  to  be  tackled,  if  need  be  by  the  adoption  of 
substantive rules. 

Question 18  

Should specific conflict-of-laws rules be adopted on: 

a. the family relationships that can engender maintenance obligations? 

b. the question of the mobility conflict? 

c. agreements relating to maintenance obligations? 

d. limitation of maintenance, exequatur and enforcement actions?  

Should  different  solutions  be  adopted  in  the  future  Community  instrument  and  the 
future Hague Convention? 

6. 

COOPERATION 

The  Hague  Special  Commission  in  May  2003  was  extensively  devoted  to  cooperation  and, 
according to certain options, could provide the bulk of the future convention. While there are 
grounds  for  doubting  whether  the  establishment  of  rules  of  this  kind  would  suffice  to 
overcome  the  legal  difficulties  that  have  been  met,  it  must  be  acknowledged  that  preparing 
rules of law alone will not guarantee the quick and efficient recovery of maintenance claims 
when creditor and debtor reside in different countries.  

The  problems  to  be  solved  in  the  international  or  purely  Community  context  are  similar,  of 
course,  but  much  fuller  and  more  effective  solutions  can  be  put  in  place  here  too,  in  the 
Community area. 

6.1. 

Authorities responsible for cooperation  

6.1.1.  Designation of authorities 

The system provided for by many international or Community instruments, whereby central 
authorities are responsible for cooperation, has proved its worth and should be preserved. 

Even so, while there ought to be a single interlocutor – or possibly one in each component of 
non-centralised  States  –  responsibility  for  relations  with  other  States  on  certain  important 
questions, direct communications between regional or local authorities might be preferable in 
a number of cases. Transmission of documents between successive intermediaries is a source 
of hold-ups and loss of information. 

The  review  of  cooperation  in  matters  of  maintenance  obligations  in  the  European  Union 
Member States, in the study ordered by the European Commission, shows that many central 
authorities  designated  under  the  New  York  Convention  or  other  agreements  plays  only  a 
minor  role  in  the  processing  of  cases,  or  even  serve  as  no  more  than  a  channel  for 
transmission to local authorities. 

32 

 
 
  
 
It is by no means certain that there is scope for substantial simplification of this organisation 
in the operation of an international instrument. 

As  regards  the  European  Union  Member  States,  it  would  be  worth  considering  extensive 
decentralisation, that is to say the designation of local authorities to be in direct contact with 
their  counterparts  in  the  other  Member  States.  The  designation  of  such  authorities  would 
constitute an opportunity for certain Member States to take a fresh look at the effectiveness of 
the cooperation structure set up under the current instruments. The reports for the European 
Commission’s  study  on  recovery  of  maintenance  claims  highlight  the  delays  and 
malfunctioning that could probably be remedied by structural reforms.  

Question 19  

Should  provisions  be  made  in  the  European  Union  for  the  designation  of 
“decentralised” authorities responsible for certain cooperation functions? 

How can the situation be improved in international terms? 

6.1.2.  Functions of designated authorities 

6.1.2.1.  Transmission of cases 

Internationally speaking it would be possible to provide at least for a semi-direct system such 
as that provided for by the Hague Convention of 15 November 1965 on the service abroad of 
judicial  and  extrajudicial  documents  in  civil  or  commercial  matters.  There  is  no  apparent 
reason why requests for recognition and enforcement from abroad should have to be received 
by  a  central  authority  and  retransmitted  forthwith  to  a  regional  or  local  authority,  provided 
always that they are ready for immediate treatment. This would mean that the decentralised 
authorities  in  the  requested  State  would  have  to  be  identifiable  by  the  authorities  of  the 
requesting State and that cases would have to be fully prepared and need no further action by 
the requested central authority.  

As  regards  the  identification  of  decentralised  authorities,  it  would  clearly  be  sufficient  for 
States  to  notify  the  Permanent  Bureau  of  the  Hague  Conference  of  the  relevant  information 
for distribution, as is the case of other Conventions.  

As  for  the  content  of  case  files,  this  would  be  checked  by  the  central  authority  of  the 
requesting State, which would be able to do this in the semi-direct system prior to transmitting 
requests for recognition and enforcement.  

33 

 
 
  
 
In the European law-enforcement area, the role of central authorities could be reduced even 
further,  provided  the  content  of  case  files  was  checked  by  requesting  authorities,  and  direct 
communications between local authorities could thus be promoted. But there would still have 
to  be  a  central  authority  responsible  for  checking  the  functioning  of  the  cooperation 
mechanisms and the general functions provided for by certain Community Regulations. 

Question 20 

What mechanisms should be set up for the transmission of cases between requesting 
and requested State? 

In the Community context, would provision be made for direct transmission of case 
files between authorities with local powers to deal with them?  

6.1.2.2.  Commencement of proceedings 

6.1.2.2.  1 Proceedings for recognition and enforcement of foreign judgments 

Working on the principle that, in the Community context, proceedings for the recognition and 
enforcement of judgments must be abolished, this question needs to considered only in terms 
of the Hague Conference. 

In  the  system  set  up  in  the  various  States  under  the  1956  New  York  Convention,  requested 
central authorities act themselves or via a local service, or instruct lawyers to commence the 
proceedings. 

While there is nothing to choose in terms of principles between the modes of organisation, the 
two  systems  do  not  tend  to  be  equally  efficient.  Public  authorities  commonly  operate  more 
quickly than lawyers. The reason is that lawyers are usually acting on the basis of legal aid, 
which entails a preliminary procedure. 

Given that there are manifest difficulties in the international recovery of maintenance claims, 
there  is  a  need  to  review  the  effectiveness  of  existing  systems  and  remove  whatever 
bottlenecks are discovered. 

Question 21 

How  can  the  functioning  of  cooperation  on  the  recognition  and  enforcement  of 
judgments be improved? 

6.1.2.2.  2 Proceedings on the merits 

In  international  relations,  as  has  been  seen,  certain  States  which  do  not  acknowledge  the 
jurisdiction of the courts for the creditor’s domicile or habitual residence ask the State of the 
debtor’s  domicile  or  habitual  residence  to  commence  proceedings  to  determine  the 
maintenance claim or the paternity of the creditor, being a minor, and certain requested States 
refuse to do this. But this situation does not arise within the Community, as Regulation (EC) 
No  44/2001  confers  jurisdiction  of  the  authorities  for  the  creditor’s  domicile  or  habitual 
residence. 

34 

 
 
  
 
On the paternity issue, several delegations at the Special Commission in The Hague in May 
2003  argued  that  such  a  procedure  was  complex  and  costly,  since  it  demanded  expert 
assessment measures, and could not therefore be commenced by a central authority on behalf 
of a creditor residing abroad. 

Certain States seem to fear that they will be submerged by all manner of requests relating to 
questions of parental authority. 

As  regards  judgments  on  the  merits,  there  is  another  question:  should  the  authorities 
responsible for cooperation provide assistance to debtors who wish to obtain a modification of 
an  earlier  judgment.  This  question  arises  not  only  in  the  work  on  preparation  of  the  future 
Hague Convention but also for the future Community instrument, as under Regulation (EC) 
No  44/2001  the  debtor  has  no  option  but  to  sue  in  the  courts  of  the  State  of  the  creditor’s 
domicile or habitual residence.  

There  are  some  who  argue  that  the  debtor,  like  the  creditor,  may  have  financial  difficulties 
preventing him  from  meeting the costs  of proceedings abroad. Others consider that the sole 
objective  is  the  recovery  of  maintenance  claims  and  that  there  is  no  call  for  cooperation 
for other purposes. Incidentally, the possibility of legal aid in such circumstances is provided 
for  by  a  number  of  other  instruments,  in  particular  Council  Directive  2002/8/EC  of 
27 January 2003.  

Question 22 

Should the future Hague Convention provide that the authorities of the Contracting 
State  in  which  the  debtor  has  his  domicile  or  habitual  residence  must  commence 
proceedings  on  the  merits  for  the  determination  of  the  maintenance  claim  or  the 
paternity of the creditor, being a minor, where the rules of jurisdiction applicable by 
the courts of the State where the creditor has his domicile or habitual residence do 
not allow them to give a ruling? 

Question 23 

Should  this  cooperation  also  be  given  to  a  maintenance  debtor  under  the  future 
Hague Convention? Under the future Community instrument?  

6.1.2.3.  Transmission of information 

The processing of case files relating to maintenance obligations can generate a need to gather 
information  abroad  on,  for  example,  a  debtor’s  address,  assets  and  resources,  on  matters 
requiring  expert  opinions,  in  particular  to  establish  paternity,  or  on  the  law  applicable  in 
another country. 

Knowledge of the debtor’s address is needed at the time of the initial action to determine the 
maintenance  claim  so  as  to  ensure  that  all  parties  can  make  their  views  known  in  the 
proceedings. Knowledge of the debtor’s assets and resources enables the authority responsible 
for ruling on the maintenance claim to set the amount on the basis of the facts. 

The creditor does not always have this information and can have difficulties in commencing 
or winning a case if no help is available to obtain it. 

35 

 
 
  
 
The  international  and  regional  instruments  currently  applicable  do  not  provide  that  an 
authority  can  be  required  to  seek  out  the  address  of  a  debtor  in  its  territory  to  allow 
proceedings to go ahead in another country.  

Regarding the gathering of information on a debtor’s assets, the courts can use the 1956 New 
York Convention on the recovery abroad of maintenance, the 1970 Hague Convention on the 
taking of evidence abroad in civil or commercial matters or Regulation (EC) No 1206/2001 
cooperation  between  the  courts  of  the  Member  States  in  the  taking  of  evidence  in  civil  or 
commercial matters, as the case may be. 

These three instruments mainly provide for a system of requests from the judicial authorities 
of  the  requesting  State  to  the  authorities  of  the  requested  State,  and  only  the  Community 
Regulation imposes deadlines on the courts for acting on requests addressed to them. The use 
of the schemes provided for there is somewhat mismatched with requests for information on 
debtors’  assets,  for  instance,  but  better  matched  to  requests  for  expert  opinions  on  paternity 
issues. 

Article 3 of the 1990 Convention between Member States of the European Communities on 
simplification of procedures for the recovery of maintenance claims, which never came into 
force, provided that: 

“2.  On  receipt  of  the  application  mentioned  in  Article  5  the  Central  Authority  in 
the  State  addressed  shall  take  or  cause  to  be  taken  without  delay  all 
appropriate and useful measures to: 

(i) 

 seek out and locate the debtor or his assets; 

(ii)   obtain,  where  appropriate, 

relevant 

information 

from  Government 

Departments or agencies in relation to the debtor; ...” 

This  provision,  however,  does  not  entrust  central  authorities  with  an  investigation  role 
regarding the debtor’s and assets prior to the exequatur stage.  

Certain States have population registers so that a person residing in the territory can be traced 
very  quickly.  Others  operate  different  forms  of  registration  for  company,  tax,  banking  or 
whatever  purposes.  These  schemes  should  make  it  possible  to  gather  the  basic  information 
required for processing files on maintenance obligations.  

But  administrations  or  courts  do  not  always  have  access  to  these  different  forms  of 
registration  as  there  are  data-protection  principles  of  varying  strictness,  and  sometimes  the 
material possibilities are also lacking. 

It  would  be  worth  taking  inspiration  from  the  1990  European  Convention,  in  particular  in 
preparing the future Community instrument, entrusting the central authorities with the various 
tasks provided for in it and requiring these to be accomplished also at the stage of the initial 
application for determination of a maintenance claim. It might also be possible to entrust the 
central authorities with other tasks not provided for by that Convention. 

In the Community context, it would be helpful if the central authorities were supplied with the 
means they need to gather the information. 

36 

 
 
  
 
Regarding  the  States’  domestic  law,  the  Council  of  Europe  Convention  of  7  June  1968  on 
Information  on  Foreign  Law  allows  the  judicial  authorities  of  the  States  Party  to  seek 
information  via  the  central  authorities  for  the  purposes  of  proceedings  already  commenced. 
But this Convention, ratified by a large number of European Union Member States, does not 
seem to have been activated very often.  

In the Community area, the transmission of information on national law can be handled by the 
European Judicial Network in Civil and Commercial Matters.15 

Internationally, the transmission of information on national law could also be entrusted to the 
central authorities.  

Question 24 

Should the central authorities responsible for cooperation in matters of maintenance 
obligations be entrusted with the transmission  of  information, locating debtors and 
seeking  other  information  about  their  assets?  Should  they  be  entrusted  with  the 
transmission of other information, in particular about their national law?  

Question 25 

Should the central authorities be entrusted with the preparation of expert opinions, to 
enable  a  court  hearing  a  maintenance  claim  in  respect  of  a  minor  to  rule  on  the 
paternity issue? 

Question 26 

Should other tasks be entrusted to the central authorities?  

Question 27 

In  what  areas  could  more  detailed  rules  of  cooperation  be  envisaged  in  the 
Community? 

6.2. 

Costs 

While  there  is  general  agreement  on  the  principle  that  functions  carried  out  by  the  central 
authorities  in  international  judicial  assistance  should  be  free  of  charge,  the  principle  being 
followed with a few exceptions in the international instruments that provide for cooperation 
rules, opinions differ on the question of costs of exequatur and enforcement proceedings. 

These differences proceed in particular from differences in the way requests for cooperation 
under the existing conventions are handled. 

15 

European Judicial Network in civil and commercial matters:  
http://europa.eu.int/comm/justice_home/fsj/civil/network/fsj_civil_network_en.htm 

37 

 
 
  
 
                                                 
In  certain  States,  foreign  case  files  are  handled  at  the  exequatur  and  enforcement  stages  by 
actual judicial or administrative bodies. In others the requested central authority transmits the 
request to court auxiliaries acting on a liberal profession basis and the cost of the procedure, 
which must be paid for, is generally borne by the creditor. Between the two extremes, there is 
a  whole  series  of  intermediate  solutions  in  various  States  on  the  basis  of  their  domestic 
organisation. 

Apart from being free of charge for the creditor, the direct handling of requests by the judicial 
or administrative authorities of the requested State commonly saves much time, provided of 
course  that  these  authorities  are  not  overloaded.  But  this  cooperation  free  of  charge  is 
commonly  available  only  for  maintenance  claims  for  children,  and  adult  creditors  often 
receive no assistance from the authorities in countries that have such a system.  

In  countries  where  files  are  processed  by  court  auxiliaries  operating  on  a  liberal-profession 
basis,  creditors  may  be  eligible  for  legal  aid  if  the  relevant  international  agreements  or  the 
State’s  domestic  law  allow  this,  as  will  be  the  case  between  the  European  Union  Member 
States  under  the  provision  transposing  Council  Directive  2002/8/EC  of  27  January  2003. 
These various sets of provisions generally provide for means-tested legal aid. This system can 
be  beneficial  as  adults  can  be  eligible  for  assistance  in  the  same  way  as  minors.  It  can  also 
have drawbacks, chief among them the major delays in processing files on account of the time 
taken to examine legal aid applications and of the need to renew them each year, and the fact 
that the entire family’s income is taken into account, even where the application is made on 
behalf of a minor. 

If  the  aim  is  to  avoid  negotiations  both  for  the  future  Hague  Convention  and  for  the  future 
European instrument culminating in the adoption of the solution corresponding to the lowest 
common  denominator,  improvements  will  have  to  be  made  to  the  operation  of  most  of  the 
existing schemes. It must be borne in mind that a creditor residing abroad cannot act to assert 
his  rights  vis-à-vis  the  relevant  authorities  in  the  requested  State,  but  in  the  law  of  several 
countries he can  do  so  vis-à-vis the local authorities.  Giving  creditors  residing  abroad  more 
extensive rights of  access to legal aid cannot therefore be regarded as breaching equality in 
relation to creditors residing locally. 

The most ambitious solution would be, of course, to require all States to bear all the costs that 
all maintenance creditors have to cover. But there would probably have to be an agreement on 
what costs would be covered, as it was clear at the Special Commission in The Hague in May 
2003,  for  example,  that  many  States  would  refuse  to  bear  the  costs  of  expert  opinions  on 
paternity. The fears expressed on this point clearly need to be played down, as the cost of the 
techniques used is likely to decline quite seriously as time goes by. 

Another solution might be to make distinctions, for example depending whether the creditor is 
a child, a spouse or another person.  

38 

 
 
  
 
The  principle  raised  at  The  Hague  that  States  bound  by  the  same  instrument  should  supply 
services of an equivalent level irrespective of the means deployed for the purpose should be 
accepted in any event. The cooperation procedures operated by certain Member States might 
be reviewed from a cost-cutting angle without impairing the effectiveness of the assistance. 

Question 28 

Should  it  be  provided  that  all  maintenance  creditors  are  eligible  for  the  provision 
free of charge by central authorities in the  requested  State  of  the  measures  needed 
for the recognition and enforcement of judgments given in their favour?  

Could different solutions be envisaged in the Community and internationally? 

Question 29 

Is  it  possible  to  envisage  establishing  less  costly  cooperation  procedures  in  certain 
countries than those currently used?  

Should  or  could  these  specific  cooperation  procedures  be  reserved  for  certain 
creditors? 

Should the future Community instrument provide for more generous conditions than 
would be applicable under the future Hague Convention in the international context? 

7. 

PRACTICAL MATTERS 

The report on the study done for the European Commission and the various meetings in The 
Hague on maintenance obligations have all revealed that the central authorities regularly face 
practical  difficulties  that  make  the  treatment  of  the  files  before  them  more  complicated  and 
sometimes even impossible. Solutions must be found to these recurring problems. 

7.1. 

Translations 

Translation problems arise in communications between central authorities, but above all with 
documents that must be in the file on the request for judicial assistance.  

7.1.1.  Forms 

For communications between central authorities, a two-language form has been prepared by 
the  Hague  Conference,  and  this  could  be  taken  over  with  the  requisite  adaptations  for  the 
future Convention.  

Specific  forms  will  have  to  be  prepared  for  the  purposes  of  communications  between 
authorities  in  the  European  Union  Member  States  as  more  languages  are  involved  and  the 
type of information to be transmitted depends on the content of the instruments.  

In certain specific cases, the forms might not be enough, and rules will have to be prepared on 
the use of languages both between States parties to the future Hague Convention and between 
European Union Member States. 

39 

 
 
  
 
7.1.2. 

Items in the file 

Regarding the content of the files, the report on the study done for the European Commission 
reveals  among  other  things  that  there  are  problems  on  account  of  the  poor  quality  of  the 
translations of certain important documents. And there are complaints about the high cost of 
translations borne by the central authorities. 

Several solutions have been envisaged at The Hague, in particular translating only the part of 
the  judgment  relating  to  maintenance  obligations  if  a  judgment  rules  on  several  issues  or 
translating  only  if  specifically  requested  by  the  judicial  authorities acting  on  the  request  for 
exequatur.  None  of  the  suggestions  was  well  received,  and  many  experts  argued  that  all 
documents referred to their national courts should be in their national language.  

The future Community instrument could take over the  solutions provided for by Regulation 
(EC) No 2201/2003 as regards judgments relating to rights of access and the return of a child 
wrongfully removed. Article 41 of the Regulation provides that rights of access granted by an 
enforceable judgment given in a Member State shall be recognised and enforceable in another 
Member  State  if  the  judgment  has  been  certified  in  the  Member  State  of  origin.  The 
translation of the certificate is required solely as regards Article 10, relating to the exercise of 
rights of access, and the other sections of the certificate do not have to be translated. Article 
42, on the return of the child, contains similar provisions. 

The future Community instrument could likewise provide that judgments to be enforced in the 
requested Member State must be certified by the authority of the Member State of origin. The 
certificate  would  contain  information  allowing  the  parties  to  be  identified  and  would 
incorporate  the  components  of  the  judgment  needed  for  its  enforcement:  total  amount  to  be 
recovered or monthly instalments, index-linking (if any), etc.  

Question 30 

What should be the solution to the question of the languages to be used in relations 
between  authorities  in  the  States  parties  to  the  future  Hague  Convention  and 
between authorities of the European Union Member States? 

Question 31 

What should be the solution in the future Hague Convention to the question of the 
languages in which documents in judicial assistance files should be translated?  

Question 32 

Could  the  future  Community  instrument  be  based  on  the  solutions  adopted  in 
Regulation No…?  

40 

 
 
  
 
7.2. 

Items to be supplied 

Certain  central  authorities  complain  about  difficulties  in  relations  with  their  counterparts  in 
certain  countries  who  send  incomplete  files  or  demand  more  and  more  documents,  for 
example on requests for legal aid. 

There are apparently a number of sources for these difficulties: failure by central authorities to 
check the content of files transmitted, impossibility of obtaining all the requisite documents 
from the creditor, lack of information on the needs of the authorities of the requested State, 
failure to understand why the documents matter, etc. 

Regarding  failures  to  understand,  mutual  information  systems  should  be  feasible  in  the 
context of the future Hague Convention.  

In the Community context, information could be obtained via the central or local authorities 
responsible for the case, but also through the contact points of the European Judicial Network, 
and even, where general information is concerned, from the EJN website. 

At  the  Special  Commission  in  The  Hague  in  May  2003,  several  delegations  suggested  that 
certain  documents  be  replaced  by  certificates  issued  by  central  authorities.  This  solution 
follows  the  solution  adopted  by  Articles  41  and  42  of  Regulation  (EC)  No  2201/2003.  The 
electronic transmission  of  certain  documents  was  also  raised.  But  certain  experts  stated  that 
originals or certified copies of certain documents were needed for procedures to be valid.  

But  it  might  be  possible  to  replace  certain  documents  by  certificates issued  on  forms 
removing  the  need  for  translation:  for  example,  certificates  of  birth,  marriage  and  death  or 
documents establishing the amount of the creditor’s or debtor’s resources. 

But  some  solutions  that  are  perfectly  acceptable  in  relations  between  European  Union 
Member States might be more difficult to accept in international relations. 

Question 33 

How should the flow of information between central authorities be organised? 

Question 34 

Can  solutions  such  as  certificates  issued  by  central  authorities  in  place  of  original 
documents  be  envisaged  in  the  future  Hague  Convention  or  only  in  the  future 
Community instrument? 

Question 35 

Is it possible to envisage electronic transmission of files or of certain documents in 
the future Hague Convention or only in the future Community instrument? 

41 

 
 
  
 
7.3. 

Time limits 

At  the  Special  Commission  in  The  Hague  in  May  2003,  several  delegations  wanted  time 
limits to be imposed on the States parties to the future Convention for processing case files. 
The  report  on  the  study  done  for  the  European  Commission  cites  particularly  worrying 
examples of the time taken to process requests for judicial assistance, as in some countries no 
procedure for initial payment of maintenance can reach a conclusion in less than one, two or 
even three years, sometimes even more. 

Clearly,  if  the  debtor’s  address  is  unknown,  or  the  debtor  is  insolvent,  or  if  there  is  real 
property  that  must  be  sold,  the  creditor  will  not  obtain  rapid  satisfaction.  But  what  is  not 
acceptable,  given  the  interests  at  stake,  is  that  proceedings  where  there  are  no  particular 
difficulties cannot be completed within a reasonable period.  

The first question is whether to continue with amicable proceedings against a debtor who has 
commenced  formal  proceedings,  as  is  currently  the  case  in  certain  countries  under  the  New 
York Convention, Article 6 of which provides that “The Receiving Agency  shall ... take,  on 
behalf  of  the  claimant,  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”. It might be possible to contemplate imposing deadlines for doing these things. 

It might also be possible to contemplate imposing deadlines for the various procedural steps 
required  of  them  in  order  to  give  the  relevant authorities  an  incentive to  act  with  diligence. 
But  this  solution  raises  a  number  of  delicate  questions,  as  several  procedural  steps, 
particularly judicial proceedings on which it is difficult to impose time limits, must be gone 
through on the way to recovering maintenance. 

But  time  limits  have  been  set  by  certain  Community  Regulations.  Regulation  (EC)  No 
1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil 
and  commercial  matters  lays  down  time  limits  for  requested  entities  to  advise  requesting 
entities  that  the  requisite  action  has  been  taken.  Regulation  (EC)  No  1206/2001  on 
cooperation  between  the  courts  of  the  Member  States  in  the  taking  of  evidence  in  civil  or 
commercial matters likewise provides for time limits within which requested courts must send 
information to requesting courts, but also for the time limit within which the request for the 
taking  of  evidence  must  be  acted  on.  And  Regulation  (EC)  No  2201/2003  concerning 
jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in 
matters of parental responsibility, repealing Regulation (EC) No 1347/2000, provides that the 
court  to  which  an  application  for  return  of  a child  is  made  must  issue  its  judgment  no  later 
than six weeks after the application is lodged. 

Question 36 

Should time limits be set in the future Hague Convention, in the future Community 
instrument? 

42 

 
 
  
 
8. 

WELFARE ASSISTANCE 

Many European Union Member States have established welfare assistance schemes that can 
be available to maintenance creditors. 

Certain of these schemes apply without discrimination to all persons in difficulty. Others are 
intended precisely to offset failure to settle maintenance claims.  

In  Italy,  persons  in  difficulty,  in  particular  children  who  are  maintenance  creditors,  receive 
assistance. In Belgium a minimum integration income is paid to persons lacking resources. 

The situation of persons who might be eligible for these forms of assistance is considered and 
their family might be asked to contribute. 

In  Austria  a  federal  fund  pays  advances  on  maintenance  for  children.  In  Portugal  a  “Child 
support  guarantee  fund” pays  allowances  of  up  to  €319  per  month  to  minors  who  do  not 
receive the maintenance due to them. In Luxembourg a National solidarity fund performs this 
role for spouses and relatives in the ascending line.  

These  bodies  are  generally  subrogated  to  the  creditor’s  rights  and  can  therefore  take  action 
against the debtor for reimbursement of sums paid on his behalf. 

These  systems  that  pay  all  or  part  of  the  sums  due  from  the  debtor  to  the  creditor  on  the 
debtor’s behalf are certainly effective, partly because they do not require the creditor to prove 
a lack of resources and partly because they take care of proceedings against the debtor. 

Obviously they cannot be made compulsory in the context of the future Hague Convention. 
But a Community instrument could provide for an obligation for the European Union Member 
States to adopt such schemes. 

Question 37 

Should  there  be  an  obligation  for  the  European  Union  Member  States  to  have 
maintenance claims taken over by a public body where the debtor defaults? 

43 

 
 
  
 
9. 

LIST OF QUESTIONS 

Question 1 

Should the future instruments:  

a. –  define the concept of maintenance obligations? If so, how? 

b. –  apply to the recovery of arrears?  

c. –  apply to public bodies, in particular as regards cooperation? 

d. –  apply  to  all  persons  likely  to  enjoy  maintenance  claims  in  the  different  legal 

systems? 

Should  distinct  solutions  be  adopted  for  the  future  Community  instrument  and  the 
future Hague Convention? If so, what solutions? 

Question 2 

Should the future Hague Convention:  

a. –  contain  a  full  set  of  rules  of  direct  jurisdiction?  If  so,  what  rules  should  be 

adopted? 

b. –  contain  rules  of  direct  jurisdiction  applicable  only  to  application  for 
modification of an earlier judgment? If so, what rules should be adopted? 

Question 3 

Are there considerations that might make it difficult to abolish the exequatur in the 
Community on grounds of: 

a. –  public policy? 

b. –  failure to respect defence rights? 

If so, how could these difficulties be solved? Should certain procedural guarantees be 
adopted or reinforced? 

Question 4  

Are  there  specific  difficulties  that  would  preclude  the  principle  of  automatic 
provisional enforcement of judgments relating to maintenance obligations? 

Question 5 

As regards the enforcement of judgments, can provision be made for: 

a. 

simplification  of  procedures  for  the  enforcement  of  judgments  that  exist  in 
certain Member States? Time limits to be set? 

b. 

enforcement to be suspended only in exceptional cases? 

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Question 6  

Could it be provided that a salary attachment order against a maintenance debtor in 
one European Union Member State is enforceable without further proceedings in the 
other Member States? 

What other specific measures would be helpful? 

Question 7 

Should  the  future  Hague  Convention  provide  for  a  simplified  exequatur  system 
similar to the one provided for by Regulation No 44/2001? What other solutions are 
possible for facilitating and accelerating recognition and enforcement of judgments? 

Question 8 

Would the “fact-based” approach be workable in practice? 

Is there another preferable solution? If so, what solution? 

Question 9 

Should indirect jurisdiction be based on: 

a. 

b. 

the  solution  adopted  by  Article  8  of  the  Hague  Convention  of  1973  on  the 
Recognition  and  Enforcement  of  Decisions 
to  Maintenance 
Obligations?  

relating 

the  court  agreed  on  by  debtor  and  creditor?  Should  the  parties’  freedom  of 
choice be limited?  

Question 10 

At the exequatur stage: 

a.  what grounds for refusing recognition and enforcement should be in the future 

Convention?  

b. 

c. 

in the event of a conflict of judgments, how should the judgment to be enforced 
be distinguished?  

should there be a strict prohibition on reviewing judgments given in the State 
of origin, or should exceptions be allowed, and if so, in what circumstances and 
for what purposes? 

Question 11 

Should the future Community instrument or the future Hague Convention contain: 

a. 

b. 

a full set of conflict-of-laws rules? 

conflict rules governing specific problems? 

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Question 12  

What general rules of conflict of laws should be adopted, internationally and for the 
Community, as regards maintenance obligations?  

Question 13 

What  rule  to  solve  the  conflict  of  laws  relating  specifically  to  maintenance 
obligations  between  spouses  or  former  spouses  should  be  inserted  in  the  future 
Hague Convention? 

Question 14 

Should the parties be allowed to choose the applicable law, and if so, should there be 
rules applicable to the choice? 

Question 15 

What questions should be governed by the system of conflict of laws? 

Question 16 

How  should  the  question  of  setting  the  amount  of  maintenance  obligations  be 
approached, in particular in the Community? 

Question 17 

How should the question of index-linking maintenance obligations be approached, in 
particular in the Community? 

Question 18  

Should specific conflict-of-laws rules be adopted on: 

a. 

b. 

c. 

d. 

the family relationships that can engender maintenance obligations? 

the question of the mobility conflict? 

agreements relating to maintenance obligations? 

limitation of maintenance, exequatur and enforcement actions?  

Should  different  solutions  be  adopted  in  the  future  Community  instrument  and  the 
future Hague Convention? 

Question 19 

Should  provisions  be  made  in  the  European  Union  for  the  designation  of 
“decentralised” authorities responsible for certain cooperation functions? 

How can the situation be improved in international terms? 

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Question 20 

What mechanisms should be set up for the transmission of cases between requesting 
and requested State? 

In the Community context, would provision be made for direct transmission of case 
files between authorities with local powers to deal with them? 

Question 21 

How  can  the  functioning  of  cooperation  on  the  recognition  and  enforcement  of 
judgments be improved? 

Question 22 

Should the future Hague Convention provide that the authorities of the Contracting 
State  in  which  the  debtor  has  his  domicile  or  habitual  residence  must  commence 
proceedings  on  the  merits  for  the  determination  of  the  maintenance  claim  or  the 
paternity of the creditor, being a minor, where the rules of jurisdiction applicable by 
the courts of the State where the creditor has his domicile or habitual residence does 
not allow them to give a ruling? 

Question 23 

Should  this  cooperation  also  be  given  to  a  maintenance  debtor  under  the  future 
Hague Convention? Under the future Community instrument? 

Question 24  

Should the central authorities responsible for cooperation in matters of maintenance 
obligations  be  entrusted  with  the  transmission  of  information,  locating  debtors  and 
seeking  other  information  about  their  assets?  Should  they  be  entrusted  with  the 
transmission of other information, in particular about their national law?  

Question 25 

Should the central authorities be entrusted with the preparation of expert opinions, to 
enable  a  court  hearing  a  maintenance  claim  in  respect  of  a  minor  to  rule  on  the 
paternity issue? 

Question 26 

Should other tasks be entrusted to the central authorities?  

Question 27 

In  what  areas  could  more  detailed  rules  of  cooperation  be  envisaged  in  the 
Community? 

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Question 28 

Should it be provided that all maintenance creditors are eligible for the provision free 
of charge by central authorities in the requested State of the measures needed for the 
recognition and enforcement of judgments given in their favour?  

Could different solutions be envisaged in the Community and internationally? 

Question 29 

Is  it  possible  to  envisage  establishing  less  costly  cooperation  procedures  in  certain 
countries than those currently used?  

Should  or  could  these  specific  cooperation  procedures  be  reserved  for  certain 
creditors? 

Should the future Community instrument provide for more generous conditions than 
would be applicable under the future Hague Convention in the international context? 

Question 30 

What should be the solution to the question of the languages to be used in relations 
between authorities in the States parties to the future Hague Convention and between 
authorities of the European Union Member States? 

Question 31 

What  should  be  the  solution  in  the  future  Hague  Convention  to  the  question  of  the 
languages in which documents in judicial assistance files should be translated?  

Question 32 

Could  the  future  Community  instrument  be  based  on  the  solutions  adopted  in 
Regulation No…? 

Question 33 

How should the flow of information between central authorities be organised? 

Question 34 

Can  solutions  such  as  certificates  issued  by  central  authorities  in  place  of  original 
documents  be  envisaged  in  the  future  Hague  Convention  or  only  in  the  future 
Community instrument? 

48 

 
 
  
 
Question 35 

Is it possible to envisage electronic transmission of files or of certain documents in 
the future Hague Convention or only in the future Community instrument? 

Question 36 

Should time limits be set in the future Hague Convention, in the future Community 
instrument? 

Question 37 

Should  there  be  an  obligation  for  the  European  Union  Member  States  to  have 
maintenance claims taken over by a public body where the debtor defaults? 

49