Communication from the Commission to the Council calling on the Council to provide for measures relating to maintenance obligations taken under Article 65 of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty
Date: 2005-12-15
Institutions: European Commission
Subjects: civil law, divorce, drafting of EU law, family law, judicial cooperation in criminal matters in the EU, maintenance obligation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.12.2005 
COM(2005) 648 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 

calling on the Council to provide for measures relating to maintenance obligations taken 
under Article 65 of the Treaty establishing the European Community to be governed by 
the procedure laid down in Article 251 of that Treaty 

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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL 

calling on the Council to provide for measures relating to maintenance obligations taken 
under Article 65 of the Treaty establishing the European Community to be governed by 
the procedure laid down in Article 251 of that Treaty 

1. 

LEGISLATIVE AND INSTITUTIONAL CONTEXT 

1.1. 

Community legislation applicable to maintenance obligations  

Maintenance  obligations  are  an  integral  part  of  the  scope  of  Council  Regulation  (EC)  No 
44/2001  of  22  December  2000  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments  in  civil  and  commercial  matters  (the  “Brussels  I  Regulation”).1  That  Regulation 
lays  down  rules  governing  conflicts  of  jurisdiction,  including  a  special  rule  on  maintenance 
obligations in Article 5(2). These are followed by rules on the recognition and enforcement of 
judgments,  covering  among  other  things  judgments  given  in  the  Member  States  concerning 
maintenance obligations. Incidentally, Article 57(2) of the Brussels I Regulation specifically 
mentions “Arrangements relating to maintenance obligations concluded with administrative 
authorities or authenticated by them”, which are to be regarded as authentic instruments. 

Maintenance  obligations  are  also  within  the  scope  of  European  Parliament  and  Council 
Regulation (EC) No 805/2004 of 21 April 2004 creating a European Enforcement Order for 
uncontested  claims (the “EEO  Regulation”).2 This Regulation secures  the  free movement in 
all  Member  States  of  judgments  certified  as  European  Enforcement  Orders.  Judgments  in 
maintenance  matters  are  covered  by  this  Regulation,  which,  like  the  Brussels  I  Regulation, 
expressly  mentions  arrangements  relating  to  maintenance  obligations  concluded  with 
administrative  authorities  or  authenticated  by  them,  which  are  to  be  regarded  as  authentic 
instruments (Article 4(3)(b)). 

Maintenance  obligations  are  excluded,  on  the  other  hand,  from  Council  Regulation  (EC) 
No 2201/2003  of  27  November  2003  concerning  jurisdiction  and  the  recognition  and 
enforcement  of  judgments  in  matrimonial  matters  and  matters  of  parental  responsibility, 
repealing Regulation (EC) No 1347/2000 (the “new Brussels II Regulation”).3 The exclusion 
is expressly provided for by Article 1(3)(e) and recital 11.  

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OJ L 12, 16.1.2001. 
OJ L 143, 30.4.2004. 
OJ L 338, 23.12.2003. 

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1.2. 

Draft reform of Community legislation on maintenance obligations 

1.2.1.  Brief presentation of the proposal for a Regulation laid before the Council 

In accordance with the conclusions of the European Council meetings in Tampere (15 and 16 
October  1999)  and  Brussels  (4  and  5  November  2004),  the  Commission  presented  to  the 
Council  a  proposal  for  a  Regulation  implementing  the  mutual  recognition  programme,  the 
objective  being  to  remove  the  outstanding  barriers  to  the  recovery  of  maintenance  in  the 
European Union. The aim of the future Regulation is to create a legal environment matching 
the  legitimate  expectations  of  maintenance  creditors.  It  must  enable  them  to  obtain  an 
enforcement  order  easily,  quickly  and,  wherever  possible,  free  of  charge  which  can  enjoy 
unimpeded  freedom  of  movement  in  the  European  law-enforcement  area  and  achieve  the 
practical result that sums due are properly paid. 

This  new  legal  environment  calls  for  action  consisting  of  more  than  cosmetic  changes  to 
current  mechanisms;  measures  will  be  taken  in  all  relevant  areas  of  judicial  cooperation  in 
civil  matters:  international  jurisdiction,  applicable  law,  recognition  and  enforcement, 
cooperation  and  removal  of  barriers  to  smooth  procedures,  including  better  access  to 
information  concerning  the  situation  of  debtors  wherever  they  live  in  the  European  Union. 
These responses will be brought together as far as possible in a single Community regulation. 

This initiative is the culmination of a long process of reflection and consultation: comparative 
law study financed  in  2003,  Green  Paper produced  and  followed  up  in  2004,  several  expert 
meetings organised between 2003 and 2005, and an impact analysis with the assistance of an 
outside  contractor  and  under  supervision  by  an  interdepartmental  steering  group  which  met 
four times in 2005. 

1.2.2.  Legal basis for the proposal for a Regulation 

The  proposed  Council  Regulation  on  jurisdiction,  the  applicable  law,  recognition  and 
enforcement  of  decisions  and  cooperation  in  matters  relating  to  maintenance  obligations  is 
presented  by  the  Commission  on  the  basis  of  Articles  61(c)  and  67(2)  of  the  Treaty 
establishing the European Community. 

This is a proposal relating to judicial cooperation in civil matters, as defined by Article 65 of 
the  Treaty,  which  has  “aspects  relating  to  family  law”  within  the  meaning  of  the  second 
indent  of  Article  67(5).  The  codecision  procedure  is  accordingly  not  applicable,  and  the 
Regulation  falls  to  be  adopted  by  the  Council,  acting  unanimously  after  consulting  the 
European Parliament.  

2. 

THE PROBLEM 

The second indent of Article 67(5) of the Treaty, as amended by the Treaty of Nice, makes a 
distinction  within  the  general  field  of  judicial  cooperation  in  civil  matters,  as  the  measures 
provided  for  by  Article  65  are  taken  by  the  codecision  procedure  of  Article  251,  “with  the 
exception of aspects relating to family law”.  

Since  1  February  2003,  when  the  Treaty  of  Nice came  into  force,  there  have  thus  been  two 
procedural  arrangements:  codecision,  now  the  standard  procedure,  and  adoption  by  the 

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Council, acting unanimously after simply consulting the European Parliament, this being the 
exceptional arrangement for “measures” containing “aspects relating to family law”.  

It  is  generally  easy  enough  to  make  the  demarcation.  There  is  no  doubt  that,  for  example, 
matrimonial  matters and parental responsibility are aspects relating to family law within the 
Treaty. 

When  the  question  arose  with  the  new  Brussels  II  Regulation  of  abolishing  the  exequatur 
procedure for decisions concerning visiting rights, it was accepted as a matter of course that 
this legislation would affect the operation of national judicial systems in family law matters. 
Preserving the unanimity rule despite the entry into force of the Treaty of Nice enabled the 
Member States to ensure that no provisions of Community law could be adopted without their 
agreement  on  anything  that  could  concern  personal  relationships  within  the  family,  in 
particular following a separation: custody, visiting rights, consequences of unlawful removal 
of children, and so on. 

Whenever  core  aspects  of  family  relationships  are  at  issue  and  the  Community  legislation 
affects the very organisation of the family, the desire to maintain the unanimity rule is more 
easily  understandable.  The  recognition  or  otherwise  of  a  judgment  relating  to  custody  or 
visiting rights undeniably has a direct effect on the personal relationship between children and 
parents and thus affects the equilibrium of the family relationship, which is heavily influenced 
by the Member States’ differing legal and cultural traditions.  

But  there  are  areas  in  which  this  link  with  the  equilibrium  of  the  family  relationship  is  less 
tight  and  application  of  the  second  indent  of  Article  67(5)  gives  particularly  unsatisfactory 
results. An example is the recovery of maintenance obligations.  

In  this  context  it  is  important  to  properly  reflect  the  hybrid  nature  of  the  concept  of 
maintenance obligation – a family matter in origin but a pecuniary issue in its implementation, 
like any other claim.  

As has been seen, the Community legislature has so far always considered that maintenance 
obligations should be subject to the ordinary law on judicial cooperation in civil matters like 
any other civil claims. Consequently, the Brussels I Regulation, taking over the structure of 
the  Brussels  Convention  of  27  September  1968,  excludes  family-law  matters  but  preserves 
maintenance obligations within its scope. The new Brussels II Regulation, by contrast, covers 
a  wide  range  of  family-law  matters  (divorce,  parental  responsibility)  but  excludes 
maintenance  obligations.  And  the  EEO  Regulation  extends  to  maintenance  claims  and  was 
adopted by the codecision procedure. 

The new Commission proposal on maintenance obligations obviously falls within a different 
context. Unlike the Brussels I Regulation and the EEO Regulation, it deals exclusively with 
maintenance obligations and provides for specific measures applicable to them, whereas in the 
other two instruments maintenance obligations were merely ancillary issues in the application 
of  the  common  rules  to  civil  claims.  Maintenance  obligations  are  the  sole  concern  of  this 
proposal for a Regulation and its legal nature is determined accordingly.  

The fact that maintenance obligations are a family matter means that Community legislation 
specifically devoted to them “relate to” family law within the meaning of the second indent of 
Article  67(5)  of  the  Treaty  and  thus  fall  outside  the  ordinary  law  on  judicial  cooperation  in 
civil matters, where the codecision procedure applies. 

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This  conclusion,  although  legally  inescapable,  is  unsatisfactory.  While  maintenance 
obligations do indeed “relate to” family law, they are but a small component of a larger set. 
Once its existence is acknowledged and confirmed by a court judgment or similar formal act, 
a maintenance obligation is a claim and is subject to legal rules that differ very little from the 
general  rules  governing  asset-related  claims.  That  is  the  reasoning  behind  the  inclusion  of 
maintenance obligations within the scope of the Brussels I Regulation.  

So  long  as  Community  law  does  no  more  than  make  it  easier  to  obtain  a  judgment  on  a 
maintenance  issue  and  ensure  that  the  judgment  can  circulate  freely  and  be  enforced 
throughout  the  European  Union,  it  merely  secures  a  creditor’s  access  to  justice  and  the 
satisfaction of his claim. Community legislation seen in this light relates mainly to pecuniary 
interests.  Admittedly,  the  maintenance  obligation  is  somewhat  sui  generis  but  it  remains  a 
pecuniary  claim  representing  a  sum  of  money  to  be  recovered  with  tools  that  are  easy  to 
identify  and  can  be  applied  to  any  decision  in  a  financial  matter:  harmonised  rules  of 
international  jurisdiction,  issuance  of  an  enforceable  order  recognised  everywhere  in  the 
European  Union,  seizures  of  bank  accounts  or  wages  and  salaries,  effective  cooperation 
between Member States to facilitate the legal mechanisms that are in place. 

3. 

PROPOSED SOLUTION  

Under the second indent of Article 67(2) of the Treaty, the Council, acting unanimously after 
consulting the European Parliament, may take a decision with a view to providing for all or 
parts  of  the  areas  covered  by  Title  IV  of  Part  Three  of  the  Treaty  to  be  governed  by  the 
procedure  referred  to  in  Article  251.  It  is  therefore  legally  possible  to  transfer  maintenance 
obligations from the unanimity to the codecision procedure.  

A  Council  decision  to  that  effect,  creating  the  “passerelle”  between  unanimity  and  the 
codecision  procedure,  would  be  doubly  advantageous.  For  one  thing,  it  would  reflect  the 
specific nature of maintenance obligations. While there can be no denying the existence of a 
close link between maintenance and family relationships, the fact remains that recovery of a 
maintenance claim does not go to the core of such relationships. Unlike a decision on visiting 
rights,  implementing  a  maintenance  decision  has  no  effect  on  the  fundamental  nature  and 
expression  of  personal  relationships  between  members  of  the  family.  The  unanimity  rule, 
which  is  designed  above  all  to  reflect  the  Member  States’  differing  rules  governing  the 
organisation  of  the  family,  accordingly  cannot  be  justified  in  matters  of  maintenance 
obligations. 

Secondly, constructing the “passerelle” would allow the same legislative procedure, with the 
same prerogatives of the European Parliament, to be applied for specific measures relating to 
maintenance  obligations  as  are  applied  for  instruments  such  as  the  EEO  Regulation  which 
established a set of ordinary rules that apply to maintenance claims as to any other claims. 

It follows that, by reason of the very nature of maintenance obligations and of the legislative 
context  in  which  the  Community  has  operated  hitherto  in  this  area,  it  would  be  legally 
appropriate and politically desirable for the codecision procedure established by Article 251 
of the Treaty to be applied to maintenance obligations. 

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4. 

CONCLUSION 

In view of the foregoing considerations, the Commission calls on the Council, in accordance 
with the second indent of Article 67(2) of the Treaty establishing the European Community, 
to  decide  that  the  procedure  established  by  Article  251  of  the  Treaty  is  applicable  to  the 
measures referred to in Article 65 as regards maintenance obligations. 

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ANNEX  

COUNCIL DECISION  

calling on the Council to provide for measures relating to maintenance obligations taken 
under Article 65 of the Treaty establishing the European Community to be governed by 
the procedure laid down in Article 251 of that Treaty 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular  the 
second indent of Article 67(2) thereof, 

Having regard to the opinion of the European Parliament, 

Whereas: 

1)  Under  the  Treaty  of  Amsterdam  the  European  Community  acquired  the  power  to  adopt 
measures in the field of judicial cooperation in civil matters, as provided for by Article 65 of 
the Treaty establishing the European Community. 

2) Under the second indent of Article 67(5) of the Treaty, as amended by the Treaty of Nice, 
the measures provided for by Article 65 of the Treaty are to be adopted by the Council, acting 
in accordance with the procedure laid down by Article 251 of the Treaty, with the exception 
of the aspects relating to family law. 

3)  Under  the  second  indent  of  Article  67(2)  of  the  Treaty,  the  Council,  acting  unanimously 
after consulting the European Parliament, is to take a decision with a view to providing for all 
or  parts  of  the  areas  covered  by  Title  IV  of  Part  Three  to  be  governed  by  the  procedure 
referred to in Article 251 thereof and to adapt the provisions governing the jurisdiction of the 
Court of Justice. 

4) Judicial cooperation in civil matters has been governed by two separate procedures since 
the Treaty of Nice entered into force – the codecision procedure, which is now the standard 
procedure,  and  adoption  by  the  Council,  acting  unanimously  after  consulting  the  European 
Parliament,  which  is  the  exceptional  procedure  for  measures  involving  aspects  relating  to 
family law. 

5)  The  borderline  between  measures  involving  aspects  relating  to  family  law  and  other 
measures is sometimes difficult to define; in the case of maintenance obligations, for instance, 
which is a hybrid field with aspects relating to family law, since the maintenance obligation 
generally  arises  from  a  family  relationship,  but  also  with  financial  aspects,  since  the 
obligation generates a claim for a sum of money. 

6)  The  Council  took  this  specific  factor  into  account  when  adopting  Regulation  (EC)  No 
44/2001  of  22  December  2000  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments  in  civil  and  commercial  matters,  the  scope  of  which  includes  maintenance 
obligations but excludes family law. 

7)  Likewise,  following  the  entry  into  force  of  the  Treaty  of  Nice,  Regulation  (EC) 
No 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims 

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was adopted by the procedure laid down in Article 251 of the Treaty even though it applies to 
maintenance obligations. 

8) Given the specific nature of maintenance obligations, a decision should be taken that they 
should henceforth be governed by the procedure laid down in Article 251. 

9) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to 
the  Treaty  on  European  Union  and  to  the  Treaty  establishing  the  European  Community, 
Denmark does not take part in the adoption of this Decision and is not bound by it or subject 
to its application. 

10) In accordance with Article 3 of the Protocol on the position of the United Kingdom and 
Ireland annexed to the Treaty on European Union and to the Treaty establishing the European 
Community,  those  Member  States  have  notified  their  wish  to  take  part  in  the  adoption  and 
application of this Decision, 

HAS DECIDED AS FOLLOWS: 

Article 1 

As  from  1  June  2006  the  Council  shall  act  in  accordance  with  the  procedure  laid  down  in 
Article  251  of  the  Treaty  when  adopting  measures  relating  to  maintenance  obligations 
referred to in Article 65 of the Treaty. 

Article 2 

Article 251 of the Treaty shall apply to opinions of the European Parliament obtained by the 
Council  before  1  June  2006  concerning  proposals  for  measures  with  respect  to  which  the 
Council  shall  act,  pursuant  to  this  Decision,  in  accordance  with  the  procedure  laid  down  in 
Article 251 of the Treaty. 

Done at Brussels, …. 

For the Council 

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