Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations  COM(2005) 649 final — 2005/0259 (CNS)
Date: 2006-04-21
Institutions: European Economic and Social Committee
Subjects: ESC opinion, divorce, family law, judicial cooperation in criminal matters in the EU, maintenance obligation

8.8.2006

EN

Official Journal of the European Union

C 185/35

Opinion of the European Economic and Social Committee on the Proposal for a Council Regu-
lation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in
matters relating to maintenance obligations

COM(2005) 649 final — 2005/0259 (CNS)

(2006/C 185/07)

On 13 February 2006, the Council decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 20 March 2006. The rapporteur was
Mr Retureau.

At its 426th plenary session, held on 20 and 21 April 2006 (meeting of 20 April), the European Economic
and Social Committee adopted the following opinion by 133 votes to three, with three abstentions.

1. Summary of the Committee opinion

The subject matter covered by this proposal for a regu-
1.1
lation falls within the ambit of Article 65 of the Treaty estab-
lishing the European Community, while the legal basis is
Article 61(c) of the same treaty. Given the specific features of
maintenance claims — and the cross-border recovery of such
claims — the proposal duly reflects the principles of propor-
tionality and subsidiarity, both in relation to the courts and
national law, and in respect of the litigants concerned.

1.2
This issue relates both to family law and to the recovery
of claims; from a social angle, it involves poverty risks that also
need to be addressed.

1.3
The draft also meets the requirements of clarity and
legal certainty for the litigants, for any third parties involved
and for the relevant administrative bodies.
it
protects personal data from being used for any purpose other
than to settle the dispute and secure the debtor's compliance
with the maintenance obligations.

In addition,

the

to secure

efforts made

The Committee endorses the Commission's legislative
1.4
to some specific observations — and
initiative — subject
welcomes
sound legislation,
including the upstream consultation and preliminary impact
assessment carried out ahead of the excellent legal drafting. The
Committee is also pleased that a regulation has been selected as
the appropriate instrument and endorses the legal basis that
has been chosen, which is better suited to securing harmonisa-
tion in cases that have a European element, despite the differ-
ences — that are set
to continue — between the various
national legal provisions.

1.5 While few Member States have ratified the Hague
Convention on the law applicable to maintenance obligations,
most (17 out of 25) have done so for the Convention on the
enforcement of decisions in this field. However, given the reser-
vations expressed and the possibility of opposing a priori, on
the basis of domestic public policy provisions, a judgement
delivered in another Member State, it may prove impossible to
secure application of such a decision even though it originates
in another contracting state. This creates barriers to the free
circulation of court judgements within the Community and
these should be removed.

The Committee would therefore ask the Council

1.6
to
approve the proposed regulation, which will provide legal
certainty and give maintenance creditors practical enforcement
measures in cross-border cases, with concomitant benefits for
men and women across Europe.

1.7
Furthermore, the Committee would ask the UK and Irish
governments to consider opting into this regulation. It would
also ask the Danish government to facilitate enforcement of
maintenance decisions in line with the Hague Convention on
the enforcement of decisions relating to maintenance obliga-
tions — which that country has ratified — and, when an appli-
cation is made to it, to consider working together, on an ad-
hoc basis, with the other Member States.

2. The Commission proposal

2.1 Background to the proposal, international dimension

2.1.1
The Mutual Recognition Programme in Civil Matters,
adopted on 30 November 2000, calls for the elimination of the
exequatur procedure in matters related to maintenance obliga-
tions, which would then be covered by the ‘Brussels I’ regu-
lation (1) on the mutual recognition of judgements in civil and
commercial matters. This programme also states that it may be
necessary to lay down a number of common procedural rules
in a bid to harmonise procedures and to seek to make more
efficient the enforcement, in the requested state, of judgments
delivered in another Member State, in particular through the
identification of a debtor's assets.

2.1.2 Mutual recognition must also operate in the context of
judicial cooperation between Member States and requires
harmonised conflict-of-law rules.

2.1.3
The Hague Conference of Private International Law is
working to modernise the existing conventions and the
Commission feels that the Community approach dovetails with
level. Thanks to the
that being pursued at an international
Hague initiative, it will be possible, at a later stage, to develop
cooperation with countries outside the Union, and the initiative
could produce results that might subsequently prove suitable
for transposition within the European Union.

(1) Council Regulation (EC) No 44/2001 on jurisdiction and the recog-
judgements in civil and commercial

nition and enforcement of
matters.

C 185/36

EN

Official Journal of the European Union

8.8.2006

2.2 Purpose of the proposal for a regulation

2.2.1
The proposal seeks to eliminate all obstacles that
prevent the recovery of maintenance claims in one EU Member
State by a maintenance creditor domiciled in another Member
State.

2.2.2
Creditors must be able to obtain, free of charge, a
direct enforcement order valid across the European area of
justice enabling them to secure regular payment of
the
amounts due.

2.2.3
A single, ambitious instrument covering all the rele-
vant fields of judicial cooperation in civil matters is proving
absolutely essential
in this area given the absence of any
uniform set of rules. The concepts of maintenance and mainte-
nance creditor vary from one country to the next and non-
enforcement of a decision is also a possibility under the reser-
vations set out in Article 26 of the 1973 Hague Convention
which currently takes precedence over Community law. The
proposal is to abolish this exception — provided for in Article
71 of the Brussels I regulation — through an ad-hoc instru-
ment for the recovery of maintenance claims.

2.3 Content of the proposed regulation

2.3.1
Harmonisation of conflict-of-law rules; using harmo-
nised rules to determine applicable law facilitates the free
movement of the decision concerned, which will be delivered
under a system of law that has a sufficient and indisputable
connection with the family relationship of the creditor and
debtor.

2.3.2
across the European Union.

Recognition and direct enforceability of the decision

2.3.3
Specific enforcement measures to be taken by the
debtor's country of residence, including access to information
about the debtor's financial situation and the introduction of
legal provisions enabling maintenance to be deducted directly
from wages or bank accounts.

2.3.4
Strengthening of the ranking of maintenance claims;
enhanced judicial cooperation in civil matters: standard forms
are appended to the regulation for this purpose.

have so far wanted excluded, without, however, modifying
Member States' domestic law.

The arrangements for determining the debtor's assets
3.2
and for payment procedures guarantee respect for privacy and
data confidentiality. However, the debtor is required to inform
the creditor and the court of origin of any changes of employer
or bank account.

3.3
The regulation provides remedies for the maintenance
creditor without neglecting the debtor's right to contest the
claim or to ask for a review of the amount before the court of
origin; an application for a review suspends any enforcement
measures.

3.4
The enforcement procedure is that of the Member State
of enforcement, regardless of the Member State in which the
judgement was delivered.

Thanks to a number of

3.5
factors — the initial Green
Paper (2) that had been published, the consultations and expert
meetings that were held and the study of the situation in each
Member State — the proposal on the table is coherent, clear
and practical and should, as such, eliminate the persistent
obstacles to the cross-border recovery of maintenance claims.

4. Specific comments

4.1 Article 3

The EESC feels that the first element determining the jurisdic-
tion of the courts should be the place of the maintenance cred-
itor's habitual
the order of
indents a) and b) be reversed.

residence and thus

suggests

4.2 Article 15

The Committee considers that the maintenance creditor should
always benefit from the law conferring the right on him/her;
therefore invoking a law which would withdraw this right
should not be admissible, except for a compelling public-policy
reason as provided for under this regulation.

4.3 Article 35

3. General comments

The Committee considers the proposal for a specific
3.1
regulation on the cross-border recovery of maintenance claims
to be both necessary and proportionate. As a lex specialis, it
takes precedence over
arrangements
the other
governing judicial cooperation in civil matters. It restores the
primacy of Community law in an area which Member States

general

the opinion that

The Committee is of
the order for the
temporary freezing of a bank account should not be total, but
limited to the amounts needed for the maintenance obligation
to be met; otherwise the account holder could be deprived of
the means to survive for an indeterminate period, until a deci-
sion is reached on the content of the matter — a measure
which the Committee feels would be clearly out of proportion
to the objective in mind.

Brussels, 20 April 2006.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(2) COM(2004) 254 final.