Communication from the Commission to the Council and the European Parliament - Commentary on the articles of the proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations
Date: 2006-05-12
Institutions: European Commission
Subjects: approximation of laws, civil law, divorce, family law, judicial cooperation in criminal matters in the EU, maintenance obligation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.5.2006 
COM(2006) 206 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

Commentary on the articles of the proposal for a Council Regulation on jurisdiction, 
applicable law, recognition and enforcement of decisions and cooperation in matters 
relating to maintenance obligations 

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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

Commentary on the articles of the proposal for a Council Regulation on jurisdiction, 
applicable law, recognition and enforcement of decisions and cooperation in matters 
relating to maintenance obligations 

This commentary relates to the Articles of the proposal for a Council Regulation adopted by 
the Commission on 15 December 2005 (COM (2005) 649 final). 

Chapter I 

Scope, subject-matter and definitions 

Article  1.  The  Regulation  applies  to  all  maintenance  responsibilities  arising  from  family 
relationships (paragraph 1). Rather than listing the types of relationships thus covered, it has 
been  felt  preferable  to  refer  to  a  generic  concept  of  family  maintenance  obligations  without 
seeking to impose either a broad or a restrictive vision of the concept of the family.  

Paragraph 2 determines the geographical scope of the Regulation.  

Article 2. Most of the definitions appear in other instruments (e.g. authentic instruments are 
defined in Article 4(3) of Parliament and Council Regulation (EC) No 805/2004 of 21 April 
2004 creating a European Enforcement Order for uncontested claims.1  

Chapter II 

Jurisdiction 

This Chapter departs in a number of respects from Council Regulation (EC) No 44/2001 of 22 
December  2000  on  jurisdiction  and  the  recognition  and  enforcement  of  judgements  in  civil 
and commercial matters.2 

Article  3.  The  rule  of  general  jurisdiction  applies  wherever  the  defendant  is  habitually 
resident.  This  is  the  solution  opted  for  in  Council  Regulation  (EC)  No  2201/2003  of  27 
November  2003  on  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in 
matrimonial matters and in matters of parental responsibility.3  

This  Article  adds  an  important  detail  at  item  d).  To  avoid  all  risk  of  controversy  in  the 
interpretation  of  “proceedings  concerning  the  status  of  a  person”,  it  is  provided  that  a  court 
having jurisdiction as regards parental responsibility under Regulation No 2201/2003 also has 
jurisdiction  as  regards  maintenance  if  the  maintenance  application  is  ancillary  to  the 
proceedings relating to parental responsibility. This will help to encourage combined actions. 

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OJ L 143, 30.4.2004, p. 15. 
OJ L 12, 16.1.2001, p. 1. 
OJ L 338, 23.12.2003, p. 1-29. 

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Lastly,  the  Regulation  abandons  the  concept  of  domicile  and  now  refers  only  to  habitual 
residence; this is the more appropriate concept in instruments applicable to family law. 

Article 4. This provision broadly follows Article 23 of Regulation No 44/2001, but it makes 
two  major  innovations  regarding  prorogation  of  jurisdiction.  First  of  all,  the  formal 
requirements  are  tightened  up:  only  agreements  concluded  in  writing  will  be  accepted 
(paragraph 2).  

Secondly, the scope of the clauses conferring jurisdiction is significantly restricted, since they 
are prohibited in disputes relating to a maintenance obligation towards a minor (paragraph 4). 
In such matters the “weaker party” must be given fuller protection. 

Article 5. This follows Article 24 of Regulation No 44/2001. 

Article  6.  Instead  of  a  renvoi  to  national  laws,  when  no  courts  of  any  Member  State  have 
jurisdiction under the previous Articles, this provision establishes two subsidiary connecting 
factors:  the  common  nationality  of  the  creditor  and  the  debtor,  and  the  place  of  the  last 
common habitual residence of the spouses, where this residence still existed at least one year 
before the institution of the proceedings.  

Legal  foreseeability  is  strengthened,  and  all  situations  in  which  a  link  with  the  European 
Community can legitimately be established are covered. This provision will apply only where 
the two parties – creditor and debtor – reside outside the European Union, did not conclude a 
choice-of-court agreement or did not appear voluntarily before a court in a Member State.  

Articles  7,  8,  9  and  10.  Regarding  lis  pendens,  related  actions,  the  seising  of  a  court  and 
provisional  –  including  protective  -  measures,  Articles  27,  28,  30  and  31  of  Regulation  No 
44/2001 are broadly taken over here. 

Article 11. This provision is partly inspired by Article 17 of Regulation No 2201/2003, but it 
takes  account  of  the  fact  that  there  is  no  longer  a  renvoi  to  national  law  and  that  the 
international  jurisdiction  of  a  court  of  a  Member  State  can  now  be  based  only  on  the 
Regulation. 

Chapter III 

Applicable law 

Article  12.  The  purpose  of  this  Chapter  is  to  harmonise  the  conflict  rules  applicable  to 
maintenance obligations and not to determine the law applicable to the establishment of the 
family relationship on which the maintenance obligations are based. The preconditions for the 
existence of a maintenance obligation are not covered. The law designated by the Regulation 
makes it possible to determine if the son has a maintenance obligation towards his father, but 
it does not regulate the establishment of the father/son relationship.  

Article  13.  The  law  of  the  country  of  the  creditor's  habitual  residence  remains  predominant 
(paragraph  1),  as  in  the  Hague  Convention  of  2  October  1973  on  the  law  applicable  to 
maintenance obligations ( "the Convention").  

The  lex  fori  ranks  second  (paragraph  2)  in  two  situations.  The  first  is  where  the  law  of  the 
country of the creditor's habitual residence does not make it possible for the creditor to obtain 

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maintenance.  The  lex  fori  is  thus  applied  as  a  replacement  solution  to  protect  the  creditor 
(paragraph 2(a)).  

The  second  situation  (paragraph  2(b))  covers  cases  where  the  creditor  is  eligible  for 
maintenance under the law of the country of his habitual residence but prefers to ask for the 
lex fori to apply. This possibility is available, however, only if the lex fori coincides with the 
law of the debtor’s country of habitual residence. There is therefore no inequality between the 
parties: the creditor brings an action in the country of the debtor’s habitual residence and asks 
for  the  law  of  that  country  to  be  applied.  It  could  be,  for  instance,  that  the  creditor,  on 
linguistic grounds or for considerations of cost, might prefer the requested authority to apply 
its own internal law. 

Rather than providing for the automatic application of the law of the common nationality of 
the parties on a cascade basis, in the event of "failure" of the other laws, paragraph 3 provides 
for  derogating  from  the  basic  rules  only  if  two  conditions  are  both  satisfied:  it  must  be 
impossible  under  the  laws  designated  by  paragraphs  1  and  2  for  the  creditor  to  obtain 
maintenance from the debtor, and there must be another country with which the maintenance 
obligation has a close link. This could be the country of common nationality, but there might 
be other possibilities as well. 

Article 14. Whatever the nature of the maintenance relationship, the parties can opt for the lex 
fori  when  commencing  proceedings,  provided  the  choice  is  explicit  or  at  least  unequivocal. 
The point is not, therefore, to choose the applicable law in advance for future disputes but to 
agree that the requested authority should apply its own law. 

But stricter conditions as to substance and form apply for the creditor and debtor to agree in 
advance on the applicable law. Such agreements prior to any dispute are prohibited as regards 
maintenance  obligations  towards  children  and  vulnerable  adults.  Moreover,  the  parties  can 
agree  to  designate  only  certain  laws  with  which  their  situation  is  connected.  Lastly, 
agreements must be concluded in writing. 

Article  15.  This  provision  organises  protection  for  the  debtor  against  the  application  of  the 
designated  law  when  the  maintenance  relationship  is  not  unanimously  acknowledged  as 
deserving priority. Such is the case, in particular, of maintenance relations between collateral 
relations  or  between  in-laws,  or  of  maintenance  obligations  owed  by  descendants  towards 
relatives  in  the  ascending  line.  As  in  Article  7  of  the  Convention,  the  debtor  may  oppose  a 
claim by the creditor on the ground that there is no maintenance obligation under the law of 
their  common  nationality  or,  in  the  absence  of  a  common  nationality,  under  the  law  of  the 
country in which the debtor is habitually resident. 

Maintenance obligations between spouses and ex-spouses raise real difficulties in the Member 
States which want to prevent a duty of support being maintained artificially after the couple 
separate.  Paragraph  2  protects  the  debtor  by  enabling  him  to  plead  that  there  is  no 
maintenance obligation under the law of the country with which the marriage has the closest 
connection,  i.e.  the  country  which  represented  the  principal  centre  of  the  spouses’  interests 
when they were together. 

Article 16. It reproduces Article 9 of the Convention but specifies that it applies only to the 
right of a public body to seek reimbursement, i.e. its capacity to act. Reimbursement as such 
will be subject to the law designated according to the other conflict rules in the Regulation (cf. 
Article 17(1)(e)).  

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Article  17.  The  non-exhaustive  definition  of  the  field  covered  by  the  law  applicable  to  a 
maintenance obligation in paragraph 1 is inspired by the one in the Convention. It specifically 
mentions  limitation  periods  to  avoid  certain  difficulties  of  application  at  the  enforcement 
stage. 

Paragraph  2  takes  over  a  provision  of  substantive  law  from  Article  11  of  the  Convention, 
requiring the competent authorities of the Member States to take the needs of the creditor and 
the resources of the debtor into account in determining the amount of maintenance, whatever 
the contents of the applicable law designated by the conflict rule. 

Article 18. The principle of the universality of the conflict rules is firmly established. 

Article 19. Renvoi is prohibited (paragraph 1), except if the designated law is that of a non-
member country whose rules of private international law designate the law of another country 
(paragraph 2). It does not appear appropriate in a maintenance dispute in a court of a Member 
State  to  apply  the  law  of  a  non-member  country  which  would  not  apply  it  in  an  identical 
situation. However, to simplify this "partial renvoi" technique, the lex fori is applied directly 
in such a case.  

Article  20.  The  public  policy  exception  is  retained  to  exclude  the  designated  law,  but  it  is 
proposed  that  no  use  be  made  of  it  with  regard  to  the  laws  of  the  Member  States.  The 
mechanisms protecting debtors against the claims of certain maintenance creditors (cf. Article 
15) appear sufficient to neutralise the undesirable effects of the laws of certain Member States 
when they are applied in other Member States. 

Article 21. The solution opted for by Article 19(1) of the Rome Convention of 19 June 1980 
on the law applicable to contractual obligations is taken over here for States with more than 
one legal system.4 

Chapter IV 

Common procedural rules 

This  Chapter  enacts  the  common  procedural  rules  to  guarantee  strict  compliance  with  the 
requirements  of  adversary  proceedings.  These  rules  constitute  the  essential  accessory  to  the 
removal  of  the  exequatur  procedure  and  will  apply  to  all  maintenance  proceedings  of 
whatever kind so that any decision given in a Member State may be eligible for the automatic 
recognition system. 

Article 22. The methods of serving the document instituting proceedings are harmonised by 
taking  over  those  provided  for  by  Article  13  of  Regulation  No  805/2004,  which  make  it 
possible to obtain proof of receipt of the document by the defendant (paragraph 1). At least 
one of these methods must be provided for by the national law of the Member States, which 
are asked to inform the Commission which methods are available (paragraph 3). 

Paragraph 2 organises defence rights by requiring a minimum period which every defendant 
must enjoy from the day when he receives the document instituting proceedings. 

4 

OJ C 27, 26.1.1998, p. 34 -53. 

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Article 23. The harmonisation effected by Article 22 will make it easier for the court to assess 
the admissibility of a case. The stay of proceedings provided for by Regulation No 2201/2003 
(Article  18(1))  should  therefore  be  very  rare  if  the  defendant  failing  to  enter  an  appearance 
resides in a Member State since, by definition, this defendant will have been able to receive 
the document instituting proceedings in accordance with the common rules of Article 22. The 
court therefore has only a limited function when a defendant who fails to enter an appearance 
resides in a Member State: all it will have to do is check that the document was indeed served 
in compliance with the harmonised rules. 

On the other hand, if a defendant who fails to enter an appearance resides in a non-member 
State (paragraphs 2 and 3), Article 18(1) and (3) of Regulation No 2201/2003 will have to be 
taken over. 

Article  24.  It  may  be  that  the  rules  of  Article  22  are  ineffectual,  either  because  they  do  not 
produce  the  expected  result  (defendant  untraceable),  or  because  they  are  not  applicable 
(defendant in a non-member State), or because of force majeure. In such cases, a decision can 
be taken, but the defendant will then have a right, in any Member State, to apply for review of 
the decision.  

Since the defendant will have been informed of the decision and will have been able to act, he 
will enjoy a period to apply for review of this decision. Such a request suspends enforcement 
measures (cf. Article 33, item b). 

Chapter V 

Enforceability 

Article 25. Intermediate measures are abolished for maintenance claims. Given the procedural 
guarantees imposed upstream, in all Member States, before the decision is given, downstream 
controls,  when  the  decision  circulates  within  the  European  judicial  area,  are  no  longer 
necessary. 

Article  26.  The  full  enforceability  of  a  decision  –  already  commonly  provided  for  by  the 
national  laws  of  the  Member  States  –  is  the  general  rule.  This  means  that  enforcement 
proceedings  can  be  commenced  even  before  the  decision  is  final.  A  similar  measure  has 
already  been  taken  by  the  Community  legislature  as  regards  rights  of  access  (second 
subparagraph of Article 41(1) of Regulation No 2201/2003). 

Chapter VI 

Enforcement 

Article  27.  This  Chapter  derogates  from  the  principle  that  enforcement  proceedings  are 
governed by the law of the enforcing Member State. It covers enforcement measures intended 
to apply in cross-border situations; this always means situations where a decision is taken in 
one Member State and enforced in another.  

Article 28. The party applying for enforcement is exempted from producing a full translation 
of the decision. In place of a translation an extract from the decision using the standard form 
available in all the Community official languages is required.  

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Articles 29, 30 and 31. The formalities required in the enforcing Member State are simplified 
by  observing  the  existing  rules  (Articles  50,  51  and  56  of  Regulation  No  44/2001)  at  the 
actual  enforcement  stage  rather  than  at  the  declaration  of  enforceability  stage,  abolished  by 
Article 25. 

Article 32. The prohibition of any review as to substance in the Member State of enforcement 
is  already  provided  for  (e.g.  Article  45(2)  of  Regulation  No  44/2001).  But  paragraph  2 
provides that the enforcement authorities may still limit the enforcement of the decision to the 
attachable part of the maintenance claim, without undermining the amount of the claim itself. 

Article  33.  Even  if  it  makes  no  substantial  modification,  an  enforcement  authority  which 
suspends enforcement of the original decision prevents the payment of maintenance and thus 
deprives  it  of  its  proper  effect.  Hence  the  need  to  limit  the  prerogatives  of  the  enforcement 
authorities by giving an exhaustive list of the grounds on which the enforcement of a decision 
can  be  refused  or  suspended,  in  order  to  ensure  the  protection  of  a  debtor  whose  situation 
changes or who applies for the review of the original decision. 

Article  34.  A  monthly  direct  payment  order  is  provided  for.  Some  Member  States  already 
have measures with similar effects (seizure of bank accounts, seizure on wages/salaries), but 
this provision is important on two counts: it offers the certainty that this type of enforcement 
measure  will  be  available  everywhere  in  the  European  Union;  and  it  offers  a  maintenance 
creditor the possibility of obtaining an order from the original court which will be enforceable 
in all the Member States. 

The maintenance creditor will thus have access to local justice: if he takes action in the court 
for  the  place  of  his  habitual  residence,  he  will  be  able  to  apply  to  the  same  court  for  an 
automatic payment order, which can then be used in another Member State. The originating 
court  will  thus  have  jurisdiction  to  issue  a  directly  enforceable  order,  even  if  enforcement 
actually takes place in another Member State.  

Issuing a direct payment order assumes that the original decision is served on the debtor by 
one  of  the  methods  provided  for  by  Article  22(2).  It  also  assumes  that  the  identity  of  the 
debtor’s  employer  and/or  bank  account,  to  which  the  order  is  to  be  addressed,  are  known 
(paragraphs 4 and 5).  

The debtor will not be always inactive; he will be able to apply for the review of the original 
court’s decision if he is being informed of it for the first time, or to challenge the payments by 
applying  for  suspension  of  the  enforcement  measure  as  provided  for  by  Article  33.  To 
facilitate  the  debtor’s  information,  he  must  be  notified  of  the  payment  order,  the  original 
decision and an information note (paragraph 4(b)). 

Article  35.  The  temporary  freezing  of  a  bank  account  may  be  obtained  to  guarantee  the 
effectiveness  of  the  enforcement  measures.  This  rapid  procedure  –  the  debtor  not  being 
actively  involved  at  the  initial  stage  –  allows  the  court  hearing  the  case  to  prevent 
concealment of assets. It is a provisional safeguard measure which can be withdrawn at any 
time, either at the debtor’s request (paragraph 5) or automatically when a decision is given on 
the substance (paragraph 6).  

Article 36. The priority ranking given to maintenance claims makes it possible to ensure that, 
in the European Union, maintenance claims which meet essential requirements will always be 
paid by way of preference over the debtor's other debts. 

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Chapter VII 

Authentic instruments and agreements 

Articles  37  and  38.  Authentic  instruments  and  agreements  between  parties,  when  they  are 
enforceable on the territory of a Member State, must be eligible mutatis mutandis for the same 
legal status as decisions, as is already the case in other fields (e.g. Article 46 of Regulation No 
2201/2003). They must therefore be enforceable in any Member State as in the Member State 
of origin, without formality and without it being possible to challenge their recognition. They 
can, moreover, be subject to the same enforcement measures as decisions. 

Chapter VIII 

Cooperation 

Articles 39 and 40. This Chapter is partly inspired by Regulation No 2001/2003 (Articles 53 
to  58).  The  designation  of  central  authorities  and  their  general  functions  are  subject  to 
comparable rules. 

Articles  41  and  42.  The  functions  of  the  central  authorities  and  their  working  methods  are 
adapted  to  the  specific  requirements  of  the  recovery  of  maintenance  obligations.  Thus 
maintenance creditors are given the possibility of being represented by a central authority in 
proceedings for a decision or for the actual recovery of amounts due (Article 41(2)). This aid 
will be free of charge if the maintenance creditor meets national requirements for eligibility 
for legal aid (Article 42(4)). 

To simplify life for maintenance creditors, they will be able to apply to the court of the place 
of  their  habitual  residence,  which  will  assist  them  to  ensure  that  action  is  taken  on  their 
cooperation requests (Article 42(1)).  

Article 43. The central authorities will meet in the context of the European Judicial Network 
in civil and commercial matters. 

Article 44. It is often very difficult to trace – or to retrace – the maintenance debtor. Locating 
him is essential for adversary proceedings and for identifying his assets. Member States must 
exchange information in order to achieve these objectives. 

This  positive  obligation  consists  in  providing  the  service  that  recovers  maintenance 
obligations with all existing means. That is the point of paragraph 2: Member States do not 
have to create new records but make available those which exist. The creation of new records 
is, moreover, clearly prohibited (paragraph 3). The list in paragraph 2 is a minimum and non-
exhaustive list; other authorities, and other types of information, can be added. 

Article  45.  Access  to  information  is  organised  via  central  authorities.  The  maintenance 
creditor takes the initiative by referring the matter to “his” requesting authority via "his" court 
(the court for the place of his habitual residence). However, only the court is responsible for 
requesting  and  receiving  information;  the  creditor  does  not  have  access  to  the  debtor’s 
personal data, which is supplied exclusively to authorities specifically empowered to receive 
it. 

The location of the debtor is the only item of information that can be exchanged at any time. 
Other  information  –  on  assets  –  can  be  sought  only  at  a  later  date,  when  a  decision,  an 

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authentic  instrument  or  an  agreement  between  parties  makes  it  possible  to  establish  the 
maintenance creditor’s status as such (paragraph 3). 

Article  46.  The  information  is  transmitted  to  the  court  that  made  the  initial  request.  The 
central authority is a channel of communication and cannot use the information itself; it must 
destroy it as soon as it has been transmitted (paragraph 1). 

Only  the  court  which  receives  information  may  use  it  and  only  to  facilitate  the  recovery  of 
maintenance  claims  (paragraph  2).  Any  other  use  is  prohibited.  The  court  may  send  this 
information, without disclosing it to the creditor, to the competent authorities in charge of the 
acts made possible by obtaining it.  

The court alone is empowered to store the information, and only provided it is useful to the 
recovery of a maintenance claim and for no more than one year (paragraph 3). 

Article 47. The debtor is entitled to know that data concerning him has been transmitted and 
how it was used. However, compliance with this information obligation, which is incumbent 
on  the  requested  authority,  must  not  undermine  the  effectiveness  of  recovery  of  the 
maintenance  claim.  Notifying  the  debtor  can  therefore  be  deferred,  should  a  requesting 
authority  want  to  be  able  to  use  the  information  it  received  without  taking  the  risk  that  the 
debtor might block the proposed measures. 

Chapter IX 

General and final provisions 

Article  48.  The  Regulation,  an  autonomous  Community  instrument  for  maintenance 
obligations, replaces Regulations Nos 44/2001 and 805/2004, which will no longer apply in 
this field (paragraph 1).  

In addition, in view of the harmonisation of the rules on service of documents (Article 22), it 
is no  longer necessary to apply Article 19  of Council Regulation (EC) No 1348/2000 of 29 
May 2000 on the service in the Member States of the judicial and extrajudicial documents in 
civil and commercial matters5 (paragraph 2). 

The  other  provisions  of  Regulation  (EC)  No  1348/2000,  and  those  of  Council  Regulation 
(EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States 
in the taking of evidence in civil or commercial matters, are not affected by this Regulation6 
(paragraph 3). 

Article  49.  The  new  Regulation  prevails  over  the  other  instruments  applicable  in  relations 
between Member States. It does not fully replace the applicable conventions, since its scope 
and content are not strictly identical, but it takes precedence over them and supplements them 
if necessary, in particular as regards cooperation. 

Articles 50 and 51. These provisions concern the amendment of the annexes and committee 
procedures.  

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OJ L 160, 30.6.2000, p. 37. 
OJ L 174, 27.6.2001, p. 1. 

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Article  52.  The  Regulation  will  apply  to  proceedings  instituted  as  from  its  entry  into  force 
(paragraph 1), but some of its provisions can be implemented before this date (paragraph 2). 
Such is the case of the conflict rules that the parties to an ongoing proceeding can decide to 
apply  by  mutual  agreement.  Likewise,  enforcement  measures  can  concern  all  decisions  and 
authentic  instruments  which,  in  relation  to  existing  instruments,  have  been  endorsed  for 
exequatur  or,  better  still,  are  already  exempted  from  this  formality.  Lastly,  the  provisions 
concerning  cooperation,  with  the  important  rules  on  access  to  information  will  apply  to 
pending proceedings. 

Article 53. It sets the date of entry into force of the Regulation and its date of application. 

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