Proposal for a Council Decision on the conclusion by the European Community of the Protocol on the Law Applicable to Maintenance Obligations
Date: 2009-02-23
Institutions: European Commission
Subjects: divorce, family law, judicial cooperation in civil matters in the EU, maintenance obligation, parental responsibility

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.2.2009 
COM(2009)81 final 

2009/0023 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion by the European Community of the Protocol on the Law Applicable to 
Maintenance Obligations 

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EXPLANATORY MEMORANDUM 

1. 

OBJECTIVE 

The  proposal  concerns  the  conclusion  by  the  Community  of  the  Protocol  on  the  Law 
Applicable  to  Maintenance  Obligations  concluded  on  23  November  2007  under  the  Hague 
Conference  on  Private  International  Law.  The  Protocol  is  designed  to  offer  greater  legal 
certainty  and  predictability  to  maintenance  creditors  and  debtors.  Since  the  vast  majority  of 
maintenance claims involve children, the Protocol is first and foremost a measure to protect 
children. 

2. 

DEVELOPMENT OF A COMMON JUDICIAL AREA WITHIN THE COMMUNITY 

The European Community has set itself the objective of creating a genuine judicial area based 
on the principle of mutual recognition of judicial decisions. 

On  18  December  2008  the  Council  adopted  Regulation  (EC)  No  4/2009  on  jurisdiction, 
applicable law, recognition and enforcement of decisions and cooperation in matters relating 
to  maintenance  obligations1.  Under  Article  15  of  the  Regulation  the  law  applicable  to 
maintenance  obligations  shall  be  determined  in  accordance  with  the  Hague  Protocol  of  23 
November  2007  on  the  Law  Applicable  to  Maintenance  Obligations  in  the  Member  States 
bound by that instrument. 

Application  of  the  Protocol  in  the  Community  will  guarantee  the  application  within  the 
Member States of uniform and harmonised rules on applicable law in maintenance matters. 

In  addition,  harmonised  rules  on  applicable  law  are  a  precondition  for  abolishing  exequatur 
for  decisions  concerning  maintenance  obligations.  As  a  result,  decisions  issued  in  Member 
States which are bound by the Protocol will circulate freely in other Member States without 
any form of control on the substance in the Member State where enforcement is sought. This 
will  achieve  the  political  objective  that  has  been  on  the  agenda  since  the  meeting  of  the 
European Council in Tampere in 1999. 

Because  of  the  close  link  between  the  objective  of  the  Regulation  (EC)  No  4/2009  and  the 
rules on applicable law, the Protocol should apply in the Community at the latest on the date 
of application of the Regulation, i.e. on 18 June 2011. 

3. 

THE 2007 PROTOCOL ON THE LAW APPLICABLE TO MAINTENANCE OBLIGATIONS 

The  objective  of  the  Protocol  is  to  improve  legal  certainty  and  predictability  by  creating 
common  provisions  on  the  law  applicable  to  maintenance  obligations.  The  main  aim  of 
harmonisation  of  applicable  law  rules  is  to  enable  creditors  to  act  in  full  knowledge  of  the 
situation,  without  being  subject  to  diverse  national  systems.  The  Protocol  seeks  to  strike  a 
balance between the rights of the maintenance creditor and of the debtor. 

1 

OJ L 7, 10.1.2009, p. 1. 

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The Protocol determines the law applicable to maintenance obligations arising from a family 
relationship, parentage, marriage or affinity, including any maintenance obligation in respect 
of a child regardless of the marital status of the parents (Article 1(1)). 

The Protocol provides that as a general rule, maintenance obligations shall be governed by the 
law  of  the  State  of  habitual  residence  of  the  creditor  (Article  3(1)).  Special  rules  provide 
protection  for  the  maintenance  creditor  in  situations  where  he  or  she  is  unable  to  obtain 
maintenance under the law of the State of his or her habitual residence (Article 4). In the case 
of  spousal  maintenance,  either  of  the  parties  may  request  application  of  the  law  of  another 
State  that  has  a  closer  connection  with  the  marriage  (Article  5).  A  special  rule  on  defence 
gives the debtor the possibility, in certain circumstances, to contest a claim for maintenance 
on  the  ground  that  there  is  no  such  obligation  under  both  the  law  of  the  State  of  habitual 
residence of the debtor and the law of the State of the common nationality of the parties, if 
they  have  one  (Article  6).  Finally,  parties  may  choose  the  law  applicable  to  a  maintenance 
claim either for the purpose of a particular proceeding (Article 7) or in general (Article 8). 

Application of the law determined under the Protocol may be refused only to the extent that 
its effects would be manifestly contrary to the public policy of the forum State (Article 13). In 
determining  the  amount  of  maintenance,  the  needs  of  the  creditor  and  the  resources  of  the 
debtor must be taken into account, even if the applicable law provides otherwise (Article 14). 

The  Protocol  includes  the  possibility  for  Regional  Economic  Integration  Organisations  to 
become a party (Article 24). 

4. 

COMMISSION PROPOSALS 

In  accordance  with  the  jurisprudence2  of  the  Court  of  Justice,  the  Community  has  gained 
exclusive  external  competence  in  the  fields  covered  by  Regulation  (EC)  No  4/2009.  This 
Regulation states that the rules on applicable law shall be determined in accordance with the 
Protocol and that the Protocol has to apply in the Member States at the latest on the date of 
application  of  the  Regulation.  The  Commission  proposes  therefore  that  the  Community 
should conclude the Protocol alone. 

Article 24 of the Protocol allows the European Community to declare at the time of signature, 
acceptance, approval or accession that it exercises competence over all the matters governed 
by  the  Protocol  and  that  the  Member  States  that  have  transferred  competence  to  it  shall  be 
bound by the Protocol. The Commission proposes that such a declaration should be made. 

Article  76  of  the  Regulation  specifies  that  the  Regulation  shall  apply  from  18  June  2011 
subject to the 2007 Hague Protocol being applicable in the Community by that date. Failing 
that, the Regulation shall apply from the date of application of the Protocol in the Community. 

Under  Article  25  of  the  Protocol,  the  Protocol  shall  enter  into  force  a  set  period  after  the 
deposit  of  the  second  instrument  of  ratification,  acceptance,  approval  or  accession.  The 
Protocol  has  not  yet  been  ratified  by  any  State.  Consequently,  the  Community  could  be  the 
first party to conclude the Protocol. 

2 

Opinion 1/03 of  the  Court  of  7  February 2006 on  the  competence  of  the  Community  to  conclude  the 
new  Lugano  Convention  on  Jurisdiction  and  the  Recognition  and  Enforcement  of  Judgments  in  Civil 
and Commercial Matters. 

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Since the Protocol should be applied in the Community at the latest on the date of application 
of the Regulation, i.e. 18 June 2011, the Commission proposes to make use of the mechanism 
for  provisional  application  of  an  international  agreement  before  it  enters  into  force. 
Provisional application is enshrined in Article 300(2) of the Treaty establishing the European 
Community.  The  Commission  proposes  that  a  unilateral  declaration  should  be  made  to  this 
effect upon conclusion of the Protocol. 

Under  Article  22  of  the  Protocol,  the  Protocol  shall  not  apply  to  maintenance  claimed  in  a 
Contracting  State  relating  to  a  period  prior  to  its  entry  into  force  in  that  State.  In  the 
Community,  the new  Regulation (EC) No  4/2009  on maintenance obligations shall apply to 
proceedings  instituted,  to  court  settlements  approved  or  concluded  and  to  authentic 
instruments  established  after  the  date  of  application  of  the  Regulation  (Article  75). 
Consequently, the Regulation may also be applied in cases where maintenance is claimed for 
a period preceding the date of application of the Regulation. Application of the Regulation in 
combination with Article 22 of the Protocol would have the undesirable effect that the same 
claim  might  be  subject  to  different laws,  depending on the  period for which maintenance is 
claimed. In addition, the rule on abolition of exequatur concerns only decisions given on the 
basis of the harmonised rules on applicable law. The Commission proposes that the rules of 
the Protocol should also apply where, on the basis of the Regulation, maintenance is claimed 
relating to a period prior to application of the Protocol in the Community and that a unilateral 
declaration should be made to this effect upon conclusion of the Protocol. 

The  Commission  proposal  for  a  Council  Regulation  on  jurisdiction,  applicable  law, 
recognition and enforcement of decisions and cooperation in matters relating to maintenance 
obligations, adopted on 15 December 2005, was accompanied by an impact assessment. Since 
the  impact  assessment  covered  the  proposed  harmonisation  of  the  rules  on  applicable  law, 
there is no need to conduct a new impact assessment. 

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2009/0023 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the conclusion by the European Community of the Protocol on the Law Applicable to 
Maintenance Obligations 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 61(c) in conjunction with Articles 300(2) and 300(3) thereof, 

Having regard to the proposal from the Commission3, 

Having regard to the opinion of the European Parliament4, 

Whereas: 

(1) 

(2) 

(3) 

The  Community  is  working  towards  the  establishment  of  a  common  judicial  area 
based on the principle of mutual recognition of decisions. 

Regulation  (EC)  No  4/2009  on  jurisdiction,  applicable  law,  recognition  and 
enforcement  of  decisions  and  cooperation  in  matters  relating  to  maintenance 
obligations  (hereinafter  referred  to  as  “the  Regulation”),  adopted  on  18  December 
2008, provides that the law applicable to maintenance obligations shall be determined 
in accordance with the Hague Protocol of 23 November 2007 on the law applicable to 
maintenance  obligations  (hereinafter  referred  to  as  “the  Protocol”)  in  the  Member 
States bound by that instrument.  

The  Protocol  makes  a  valuable  contribution  to  offering  greater  legal  certainty  and 
predictability  to  maintenance  creditors  and  debtors.  Application  of  uniform  rules  on 
applicable  law  will  allow  for  a  free  circulation  of  decisions  on  maintenance  in  the 
Community,  without any form of  control in the Member State where enforcement is 
sought. 

(4) 

Article 24 of the Protocol allows the Community to sign, accept, approve or accede to 
the Protocol.  

(5) 

The Community has exclusive competence over all matters governed by the Protocol.  

(6) 

The Protocol should apply between the Member States at the latest on 18 June 2011, 
the date of application of the Regulation. 

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OJ C , , p. . 
OJ C , , p. . 

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(7) 

(8) 

(9) 

Because of the close link between the Protocol and the Regulation, the Protocol should 
be applied in the Community on a provisional basis where it has not entered into force 
on  18  June  2011,  the  date  of  application  of  the  Regulation.  A  unilateral  declaration 
should be made to this effect upon conclusion of the Protocol. 

The Protocol should apply to all decisions that may be recognised and enforced under 
the rules concerning the abolition of exequatur laid down in the Regulation, including 
maintenance claimed in the Member States relating to a period prior to the entry into 
force  of  the  Protocol  in  the  Community.  A  unilateral  declaration  should  be  made  to 
this effect upon conclusion of the Protocol. 

In  accordance  with  Article  3  of  the  Protocol  on  the  position  of  the  United  Kingdom 
and  Ireland,  as  annexed  to  the  Treaty  on  the  European  Union  and  to  the  Treaty 
establishing  the  European  Community,  Ireland  will  take  part  in  the  adoption  and 
application of this Decision.[The United Kingdom will not take part in the adoption of 
this Decision.] 

(10) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark, 
Denmark will not take part in the adoption of this Decision and will not be bound by it 
or subject to application thereof, 

HAS DECIDED AS FOLLOWS:  

Article 1 

The Protocol on the Law Applicable to Maintenance Obligations is hereby approved on behalf 
of the Community. 

The  President  of  the  Council  is  hereby  authorised  to  designate  the  person(s)  empowered  to 
sign the Protocol in order to express the consent of the Community to be bound thereby. 

The text of the Protocol is attached to this Decision. 

Article 2 

When  concluding  the  Protocol,  the  Community  shall  make  the  following  declaration  in 
accordance with Article 24 of the Protocol: 

“The  European  Community  declares,  in  accordance  with  Article  24  of  the  Protocol  that  it 
exercises competence over all the matters governed by the Protocol. Its Member States will 
not  sign,  accept,  approve  or  accede  to  the  Protocol,  but  shall  be  bound  by  the  Protocol  by 
virtue of its conclusion by the European Community. 

For  the  purpose  of  this  declaration,  the  term  “European  Community”  does  not  include 
Denmark,  by  virtue  of  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark,  as 
annexed  to  the  Treaty  on  European  Union  and  to  the  Treaty  establishing  the  European 
Community [, and the United Kingdom, by virtue of Article 3 of the Protocol on the position 
of the United Kingdom and Ireland, as annexed to the Treaty on European Union and to the 
Treaty establishing the European Community].” 

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Article 3 

The  Protocol  shall  apply  provisionally  from  18  June  2011,  the  date  of  application  of  the 
Regulation, where the Protocol has not yet entered into force on that date. When concluding 
the Protocol, the Community shall make the following declaration: 

“The European Community declares that the Protocol will apply provisionally from 18 June 
2011,  the  date  of  application  of  Regulation  (EC)  No  4/2009  on  jurisdiction,  applicable  law, 
recognition and enforcement of decisions and cooperation in matters relating to maintenance 
obligations, where the Protocol has not yet entered into force on that date.” 

Article 4 

In the Community the Protocol shall also apply to maintenance claimed in the Member States 
relating to a period prior to the entry into force or provisional application of the Protocol in 
the Community in situations where proceedings are instituted, court settlements are approved 
or  concluded  and  authentic  instruments  are  established  after  18  June  2011,  the  date  of 
application of the Regulation. 

When concluding the Protocol, the Community shall make the following declaration: 

“The European Community declares that the Protocol will also apply to maintenance claimed 
in its Member States relating to a period prior to the entry into force or provisional application 
of  the  Protocol  in  the  Community  in  situations  where  proceedings  are  instituted,  court 
settlements are approved or concluded and authentic instruments are established after 18 June 
2011,  the  date  of  application  of  Regulation  (EC)  No  4/2009  on  jurisdiction,  applicable  law, 
recognition and enforcement of decisions and cooperation in matters relating to maintenance 
obligations.” 

Done at Brussels, 

For the Council 
The President 

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