5 Maintenance obligations
| (25578)
8832/04
COM(04) 254
| Commission Green Paper on maintenance obligations
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| Legal base | — |
| Document originated | 15 April 2004
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| Deposited in Parliament | 28 April 2004
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| Department | Constitutional Affairs
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| Basis of consideration | EM of 11 May 2004
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| Previous Committee Report | None
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| To be discussed in Council | Not applicable
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 The programme of measures for the implementation of the principle
of mutual recognition of decisions in civil and commercial matters,
agreed following the Tampere Council of October 1999, recognises
the importance of effective recovery of claims arising from maintenance
obligations in cases where the parties reside in different EU
Member States, and recommends the abolition of the Exequatur[11]
procedure. At present the enforcement of maintenance obligations
is already covered in part by the provisions of the Brussels Regulation
44/2001 on Jurisdiction and the recognition and enforcement
of judgements in civil and commercial matters. The programme
seeks to complement the existing regime through a series of measures
including the introduction of provisional enforcement and of interim
measures of protection. The programme also encourages Member
States to explore the case for introducing minimum guarantees
governing procedural rules for enforcement of maintenance claims
at European level, as well as extending the exchange of information
relevant to the recovery of maintenance claims.
The document
5.2 The document is a Commission Green Paper setting out the case
for a future proposal for an EU instrument on maintenance obligations
and, in addition, setting out the considerations the Commission
regards as relevant for the framing of such a proposal. The purpose
of the Green Paper is to start a consultation process based on
37 questions which the Commission invites all interested parties
to respond to. The Green Paper is divided into four principal
parts which, respectively, set out the general background to the
planned work of the Commission, the relationship between Community
legislation and the Hague Conventions on maintenance obligations,
the basic issues defining the scope of Community legislation in
this field, and finally the Commission's 37 questions covering
the principal legal issues the Commission regards as relevant
to any legislative activity in this field at EU level.
5.3 As well as setting out the legislative context
and political background, Part I provides a summary of relevant
information which, in the Commission's view, highlights the need
for further legislation in this area. The Commission notes that
the recovery of maintenance claims currently accounts for a very
large percentage of litigation in all Member States — a
direct reflection of the erosion of the family as a social unit.
The enforcement of such claims has become a Community problem
as a result of the free movement of EU citizens. The Commission
estimates that there are currently over six million EU citizens
who are not nationals of the Member State in which they reside.
Increased mobility throughout the EU means that the percentage
of maintenance claims with a cross-border EU dimension will increase.
With divorce rates currently almost 50% in many Union countries
the Commission estimates that there are tens of thousands of potential
maintenance claims with a cross-border intra-EU dimension. A
study commissioned by the Commission concludes that, for these
reasons, litigation involving cross-border recovery of maintenance
payments in the EU is likely to increase considerably and that
there exists at present a large number of obstacles to enforcement
of such claims, either traceable to inadequate cooperation between
States or a direct consequence of the added difficulty of enforcing
in another State. The report concludes that for the removal of
these obstacles the abolition of exequatur would not be
sufficient and supplementary measures will be needed.
5.4 Part 2 provides a brief overview of work currently
being carried out at the Hague Conference on Private International
Law, which seeks to consolidate and update the existing international
agreements and conventions relating to maintenance obligations.
The Commission acknowledges that certain EU Member States favour
awaiting the conclusion of the present negotiations at the Hague
Conference before deciding on the need for and scope of Community
legislation. In the Commission's view the Hague Conference remains
an important international forum for the development of a policy
of cooperation in the area of civil justice, the benefits of which
could be significantly increased if the Community itself could
accede to the Conference. Nevertheless in many respects the Commission
thinks that co-operation and legislation at EU level would probably
be best suited to a speedy and effective resolution of many of
the problems currently associated with the enforcement of maintenance
claims between Member States.
5.5 The third part of the Green Paper defines those
questions that the Commission thinks ought to be answered before
considering the precise content of any Community legislation.
The issues covered concern the concept and definition of maintenance
obligations, the definition of arrears, and the categories of
persons to whom any future instruments should apply. The Commission
discusses relevant judicial opinion from past case law.
5.6 Part 4 provides 37 questions identified by the
Commission and intended to identify whether Community legislative
action is needed. The main areas covered concern the likely benefits
of the abolition of exequatur, other ways of simplifying
the procedures for cross-border enforcement within the EU, applicable
laws and jurisdictional issues, the need for specific conflict
of laws rules, and the issue of how best to improve the exchange
of relevant information.
5.7 Any Commission proposal that may be drawn up
pursuant to the Green Paper would, once adopted, automatically
operate between all the Member States of the EU except the United
Kingdom, Ireland and Denmark. The United Kingdom and Ireland
would have to decide, pursuant to their protocol on Title IV measures,
whether to participate in the adoption of the instrument. Pursuant
to its protocol, Denmark will be excluded from participating in
the adoption of such an instrument.
The Government's view
5.8 In his Explanatory Memorandum of 11 March 2004
the Parliamentary Secretary in the Department for Constitutional
Affairs (Lord Filkin) writes as follows:
"The underlying policy of the Commission is
to simplify and accelerate through common procedural rules, the
settlement of cross-border disputes concerning maintenance claims.
This is accordance with conclusions of the Tampere European Council
in 1999, which recommended abolishing intermediate measures needed
for the recognition and enforcement in one Member State of a judgement
given in another Member State. These aims the Government would,
in principle, support. There are no detailed EU rules in this
area, though there are provisions which would assist maintenance
creditors in EU Regulation 44/2001 (on Jurisdiction and the Recognition
and Enforcement of Judgements in Civil and Commercial Matters).
However, this regulation is not tailored specifically to maintenance
claims. One of the principal international instruments in this
area is the 1973 Hague Convention on maintenance obligations.
The Hague Conference on Private International Law is currently
negotiating a new Convention with Members of the Conference, which
is intended to modernise the existing Hague rules and to incorporate
the best features of other international instruments in this area.
"Careful consideration will need to be given
to the relationship between a new Hague Convention and a new Community
Instrument in this area.
"In preparing its response, the Government will
ensure that there is full consultation with interested individuals
and organisations among the judiciary, legal practitioners and
academic experts."
5.9 The Minister also informs us that the Commission
expects comments on the working document by 30 September 2004.
It is anticipated that the Commission will publish a first version
of the possible proposal in this area early in the course of 2005.
Conclusion
5.10 We thank the Minister for his comments on
the Green Paper. We note the Government's general support for
the Commission's view on the need for EU legislative activity
in the area of maintenance obligations. We also note the Government's
intention to give careful consideration to the relationship between
ongoing work at the Hague Convention on enforcement of cross-border
maintenance claims and a new Community instrument in this area.
5.11 In our view the Commission's Green Paper
fails to make an adequate case for EU legislation in addition
to a modernisation of the existing Hague rules. We ask the Minister
whether the Government agrees that the Commission should await
the conclusion of the current negotiations on a new Hague Convention
on maintenance obligations. We ask the Minister whether the Government
intends to opt into a future EU instrument on maintenance obligations
if the Commission goes ahead. If so, we ask the Minister to explain
the Government's reasons for supporting additional Community legislation
and to outline the likely benefits of a Community measure in this
area. We will hold the document under scrutiny pending the Minister's
reply.
11 A procedure whereby a foreign judgment is approved
or certified for enforcement within the national territory. Back
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