Maintenance obligations - Main contents

The Commission is presenting the Council with a proposal for a Regulation to solve the difficulties met by maintenance creditors in the European Union in obtaining a judgment and having it enforced.

The proposal is well within the political mandate given by the Tampere European Council in 1999 and the mutual recognition programme adopted by the Council and the Commission at the end of 2000. The value of this programme was confirmed by the Hague Programme (2004) and the subsequent plan of action (2005).

A real need for the citizen

Improving the position of maintenance creditors reflects a genuine social need. If simple and affordable procedures are not available in a cross-border situation, chiefly because the debtor moves to another Member State, maintenance creditors can no longer be sure of regularly receiving the sums due to them to cover their subsistence needs. They tend to abandon hope as they face the complexity of the cumbersome mechanisms that currently operate.

A vital need to enhance children's rights

Children are the most important maintenance creditors. The growing number of separated couples and one-parent families automatically boosts the number of children with a claim for maintenance payments. And mobility in the European Union likewise automatically entails a growing number of cross-border disputes. More effective recovery of maintenance claims will thus improve the living and schooling conditions of large numbers of children.

A legal environment that remains unsatisfactory

Community law currently falls well short of meeting all the difficulties that arise with maintenance claims. There are rules on jurisdiction and the recognition and enforcement of judgments, but they are defective on two counts. First, they are not applicable uniformly, as some Member States have international conventions that are implemented in a manner that is less favourable to maintenance creditors. Second, they do not match the specific needs of maintenance creditors, who are still obliged to go through far too many formalities to obtain an enforcement order; and they are incomplete since they cover neither enforcement procedures nor cooperation between authorities, two factors of crucial importance to maintenance creditors.

Three main objectives

1) Simplify life for the general public

Simplifying life for maintenance creditors means, first and foremost, giving them access to local courts. The current rules of international jurisdiction, which already enable a maintenance creditor to take his claim to a local authority, will be improved and certain ambiguities will be removed from the existing provisions.

As soon as a decision is given in a Member State, it must have the same force in any Member State as it has in the State of origin, automatically and without formality. Intermediate measures such as the exequatur procedure, which currently delay the process of recovering maintenance claims, will be abolished.

More generally, at each stage of the process of recovering maintenance claims, the creditor will have access to aid and assistance in forms currently unavailable. In particular he will be able to take all the requisite steps from the place where he lives, including enforcement measures, for instance to have wages and salaries or bank accounts attached, trigger cooperation mechanisms or gain access to information so that he can locate the debtor and assess his assets.

The concern for simplicity means putting an end to the diversity of sources of law in these matters. The future regulation will replace the existing Community Regulations and take precedence over such international conventions as remain in force.

2) Greater certainty in the law

The rules determining the applicable law will be harmonised, but not the substantive law. This will guarantee a degree of foreseeability in the law without encroaching on the Member States' legal traditions.

The effect of the rules determining the applicable law is that the court will give a decision based on the substantive law with which the case is most closely connected. This will help to avoid the most unfair situations: a maintenance creditor will be able to obtain a satisfactory response to his situation and the decision will be all the less open to challenge as it will have been given in accordance with a law designated in accordance with harmonised rules. The harmonisation of the rules governing the applicable law will thus strengthen mutual trust between legal systems.

3) Ensuring effective, durable recovery

Only improvements to the actual recovery of maintenance claims will yield genuine durable improvements in the current situation. The idea is to enable creditors to obtain a judgment that is enforceable throughout the European Union, coupled with access to efficient enforcement facilities.

For that purpose, the proposal is to provide that all maintenance judgments will automatically be enforceable, abolish the intermediate measures needed for a judgment given in one of the Member States to be enforced in another and take a series of measures concerning enforcement as such: access to information on the situation of the debtor, direct seizures on wages and salaries and bank accounts, and closer cooperation between the central authorities in the Member States.

A proposal meeting the requirements of the Treaty and fully respecting fundamental rights

The proposal will promote the smooth operation of the internal market since establishing a new legal environment to make it easier to recover maintenance claims will help to remove barriers to the free movement of people who currently suffer from persisting divergences in the recovery of maintenance claims between Member States.

As regards the cross-border impact, the proposal contains measures to make it easier to obtain and enforce a judgment in all situations which involve an international element. The rules on conflict of jurisdiction and conflict of laws by definition concern international situations involving points of law relating to different countries. The purpose of the rules governing the recognition and enforcement of judgments is to ensure that a judgment given in one Member State is automatically enforceable in any other Member State. The purpose of the enforcement measures planned in this proposal is to make it easier to have a judgment that has been given in one Member State enforced in another. And the provisions governing cooperation and the exchange of information operate solely between two different Member States.

The proposal is fully subsidiarity-compliant. Its objectives cannot be achieved by the Member States individually, since they cannot guarantee the equivalence of the rules applicable everywhere in the Community, and must therefore be achieved at Community level. It is also proportionality-compliant since it goes no further than is needed for the attainment of these objectives.

The form of instrument chosen - a regulation - is justified on a number of grounds. It is not possible to leave it to the discretion of the Member States to determine not only the rules of international jurisdiction, which aim at certainty in the law for the benefit of the individual citizen, but also the recognition and enforcement procedure, which is designed to achieve a degree of clarity and uniformity in the Member States. The same applies to the rules on the applicable law. The proposal contains uniform rules which are detailed, precise and unconditional and require no further measures to transpose them into national law. If the Member States retained room for manoeuvre in transposing these rules, the uncertainty in the law that the proposal is designed to remove would be restored.

All the objectives pursued by the proposal will be attained without any impact on the fundamental rights recognised by the European Union. A balance is struck between the rights of maintenance creditors and debtors, who at all times will be assured among other things of the right to a fair trial and the right to data protection.

Will the Council decide unanimously ?

The regulation will be adopted by the procedure of Article 67(2) of the Treaty, whereby the Council decides unanimously after consulting the European Parliament. This proposal affects family law for the purposes of the second indent of Article 67(5) and cannot therefore be adopted by codecision under the Treaty as it stands.

This is the legally correct interpretation in view of the close links between maintenance obligations and family law, though it does have its drawbacks. It does not adequately reflect the hybrid nature of the concept of maintenance obligation - a family matter in origin but a financial matter in its execution, like any other claim.

Moreover, the Community legislature has hitherto always considered that maintenance obligations could be governed by the ordinary law (cf. the Brussels I Regulation, which excludes family law but includes maintenance obligations in its scope; likewise, the EEO (European Enforcement Order) Regulation includes maintenance obligations and was adopted by the codecision procedure).

The context for this proposal is manifestly different since it concerns solely maintenance obligations, which were no more than an ancillary matter in the other instruments.

But this legally inexorable conclusion is not politically irreversible. The Council can decide to use the "passerelle" clause in the second indent of Article 67(2) of the Treaty and transfer maintenance obligations from the unanimity rule to codecision.

In a Communication, the Commission calls on the Council to take a decision to that effect; it would reflect both the specific nature of maintenance obligations and the legislative context in which the Community has operated hitherto.