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International Child Maintenance Debts – Follow The Money

child maintenance

You Can Run But You Can’t Hide

As we are currently still in the transition period after the Brexit withdrawal agreement , the European Court decided an urgent issue within international child maintenance enforcement proceedings.

The Court has been asked to decide on the interpretation of EC No 4/2009 and Art 24 (5) EU Regulation No 1215/2012 in a maintenance enforcement objection application between a Father (living in Germany) and his daughter, represented by her mother (living in Poland)[1]

Facts

  • Polish court ordered on 26th May 2009 that Father (F), habitual resident in Germany should pay child maintenance of €100.00 pcm to the Mother (M) for the benefit of their daughter, backdated from June 2008.
  • On 20th July 2016 F issued an application with the local District Court (“Amtsgericht Cologne”) and the DJ order on 27th July 2016 that the foreign order should be enforced in Germany.
  • Based on the order dated 27th July 2016 , M started enforcement proceedings in Germany against F.
  • F lodged an application with the District Court in Cologne on 5th April 2018 objecting against the enforcement application in accordance with Paragraph 767 of the ZPO. In F’s submission he states that the maintenance debt has been already paid and settled through the Polish Maintenance Fund (since latest December 2010) , which reimbursed the funds to M.

Identified issues of the referring Court

 District Court in Cologne questioned if it has jurisdiction in respect of F opposing application within the enforcement proceedings.

  • German Court states that F’s application could be a “relating matter” within maintenance obligation as per Art 1 Regulation No 4/2009 and the Polish Court would have exclusive jurisdiction. [2]
  • If the German Court has jurisdiction in accordance with Art 1 Regulation No4 / 2009 should F’s objecting application dated 5th April 2018 be treated as “proceedings concerned with the enforcement of judgments’ within the meaning of Article 24(5) of Regulation No 1215/2012[3].

Question referred to following questions to the European Court of Justice for a preliminary ruling:

  • ‘(1)      Does an application opposing enforcement made pursuant to Paragraph 767 [of the ZPO] against a foreign maintenance order constitute a matter relating to maintenance obligations within the meaning of [Regulation No 4/2009]?
  • (2)      If not, does an application opposing enforcement made pursuant to Paragraph 767 [of the ZPO] against a foreign maintenance order constitute proceedings concerned with the enforcement of judgments within the meaning of Article 24(5) of [Regulation No 1215/2012]?’

Findings

The European Court of Justice made the following findings:

  • According recitals 10 and 11, Article 1(1) and Article 2 of Regulation No 4/2009 that the latter constitutes an instrument of the European Union bringing together, inter alia, the provisions on jurisdiction, conflicts of laws and the recognition, enforceability and enforcement of judicial decisions in matters relating to maintenance obligations arising from a family relationship, parentage, marriage or affinity.
  • The EU legislature intended to replace the provisions on maintenance obligations in Regulation No 44/2001 with provisions which, in view of the particularly urgent nature of maintenance claims, simplify the procedure before the enforcing court, thus making it quicker[4] To that end, Regulation No 4/2009 includes Chapter IV, a chapter entitled ‘Recognition, enforceability and enforcement of decisions’ which governs, inter alia, the enforcement of decisions of the courts of the Member States in matters relating to maintenance obligations.
  • Regulation No 4/2009 thus constitutes lex specialisin matters relating, in particular, to jurisdiction, applicable law and the recognition and enforcement of judicial decisions in the specific field of maintenance obligations, which is confirmed, moreover, by Regulation No 1215/2012, which repealed Regulation No 44/2001. It follows clearly from Article 1(2)(e) of Regulation No 1215/2012, read in the light of recital 10 thereof, that maintenance obligations arising from a family relationship, parentage, marriage or affinity following the adoption of Regulation No 4/2009 are excluded from the material scope of the former.
  • Therefore a dispute such as that in the main proceedings, brought before the court of a Member State (the Member State of enforcement), which seeks enforcement of a decision declared enforceable in that Member State and given by a court in another Member State (the Member State of origin), in matters relating to maintenance obligations arising from a family relationship, falls within the scope of Regulation No 4/2009, in particular that of Chapter IV thereof.
  • The fact that a national court is, like the referring court, hearing an application opposing enforcement of the decision given by a court of the Member State of origin which established a maintenance claim does not alter that assessment. As held by the Court, the application opposing enforcement under Paragraph 767 of the ZPO has a close link with the procedure for enforcement. [5] Therefore, when such an application is connected with an action seeking enforcement of a decision in matters relating to maintenance obligations, it falls within the scope of Regulation No 4/2009, just as the latter does.
  • With regard, in the second place, to the referring court’s doubts as to whether, being a court of the Member State of enforcement of the maintenance claim, it has international jurisdiction to adjudicate on an application opposing enforcement such as that at issue in the main proceedings, it is important to note that, while Regulation No 4/2009, in Chapter IV thereof, contains a series of provisions on the enforcement of decisions on matters relating to maintenance obligations, none of those provisions explicitly concerns jurisdiction at the stage of enforcement.
  • Nonetheless, among the provisions of Section 3 of Chapter IV of Regulation No 4/2009, that section being entitled ‘Common provisions’, Article 41(1) thereof states that
  • subject to the provisions of that regulation, the procedure for the enforcement of decisions given in another Member State is to be governed by the law of the Member State of enforcement and
  • a decision given in a Member State which is enforceable in the Member State of enforcement is to be enforced there under the same conditions as a decision given in that Member State of enforcement.
  • It therefore follows implicitly and necessarily from that provision of Regulation No 4/2009 that an application that has a close link with the procedure for the enforcement of a decision given by a court of the Member State of origin and which established a maintenance claim, such as the application opposing enforcement at issue in the main proceedings, falls within the jurisdiction of the courts of the Member State of enforcement, as does the application for enforcement of that decision.
  • In that regard, it would be inter alia contrary to the objectives of simplicity and speed and pursued by Regulation No 4/2009 in particular by means of the system of which Article 41(1) thereof forms part, for the competent court of the Member State of enforcement, before which a maintenance creditor brought an action to have a decision declared enforceable be enforced in that Member State, to have to find in any event that it has no jurisdiction to adjudicate on an application opposing enforcement, in favour of the jurisdiction of the Member State of origin, on the ground that the latter, being a court of the creditor’s Member State of residence, is better placed to ensure the latter’s protection under Article 3(b) of Regulation No 4/2009.
  • On the one hand, the Court has held that proximity between the competent court and the maintenance creditor is not the sole objective pursued by Regulation No 4/2009. [6] That regulation seeks also to guarantee the proper administration of justice, not only from the point of view of optimising the organisation of the courts but also from that of the interests of the litigant, whether claimant or defendant, to benefit, inter alia, from easier access to justice and predictable rules on jurisdiction. [7]
  • On the other hand, the obligation imposed on the court of the Member State of enforcement to decline in any event jurisdiction to adjudicate on an application opposing enforcement, such as that at issue in the main proceedings, in favour of the court of the Member State of origin which established the maintenance claim would not result in facilitating as far as possible the recovery of international maintenance claims, in accordance with one of the main objectives pursued by Regulation No 4/2009 but, on the contrary, it would result in an excessively long and cumbersome procedure and cause the parties to waste a considerable amount of time and additional expenses. [8]
  • It follows that a court of the Member State of enforcement hearing an action for enforcement of a decision given by a court of the Member State of origin and which established a maintenance claim has jurisdiction under Regulation No 4/2009, in particular Article 41(1) thereof, to adjudicate on an application opposing enforcement where that application has a close link with the action for enforcement brought before it.
  • It should be added in that regard that in the dispute in the main proceedings, the application opposing enforcement is based on the applicant’s assertion that he has already predominantly discharged the maintenance debt at issue either directly or indirectly through the Maintenance Fund.
  • While it is a matter for the (EU) Court to provide guidance on interpreting Regulation No 4/2009 which may be of assistance to the referring court in connection with such a ground of opposition, it is for that court (local Court in Germany) alone to assess the facts and the evidence adduced by the parties to the main proceedings in support of their claims.
  • As noted by the Advocate General in point 78 of his Opinion, the satisfaction of a debt is one of the grounds typically taken into account at the stage of enforcement, as made clear, moreover, in the second sentence of recital 30 of Regulation No 4/2009, which states that the debtor’s discharge of his or her debt at the time of enforcement is one of the grounds of refusal or of suspension of enforcement laid down in national law which are not incompatible with that regulation.
  • Where a decision was given in a Member State in which the creditor is habitually resident, such a ground, relied on by the debtor in support of an application opposing enforcement before the court of the Member State of enforcement, does not seek to modify that decision or to have a new decision given in the latter Member State, within the meaning of Article 8 of Regulation No 4/2009, nor does it seek to have the decision reviewed as to the substance in that Member State, within the meaning of Article 42
  • An application opposing enforcement which is based on that ground has a close link with the procedure for enforcement in that it seeks only to challenge the amount up to which the decision which established the maintenance claim may still be enforced, on the basis of evidence produced by the debtor as to the alleged discharge of the debt and the admissibility and validity of which are a matter for the court of the Member State of enforcement to assess.
  • In addition, in the dispute in the main proceedings, it is clear from the provisions of Paragraph 66 of the AUG that the maintenance debtor can raise objections only on the basis of events that occurred after the adoption of the decision which established the maintenance claim. Such provisions thus prevent events invoked by the maintenance debtor before the court of the Member State of origin, or which could have been invoked, from being validly presented in support of an application opposing enforcement.
  • Furthermore, as observed by the Advocate General, in essence, in points 79 to 81 of his Opinion, the assessment in paragraphs 46 and 47 above is not invalidated by the involvement, in the dispute in the main proceedings, of a public body such as the Maintenance Fund, which becomes the substitute debtor in respect of the maintenance creditor.
  • In such a case, the involvement of such a body, which, moreover, is envisaged in Article 64(2) of Regulation No 4/2009, concerns only the manner in which the maintenance debt is discharged and the evidence adduced by the debtor before the court of the Member State of enforcement in support of his submission that he has discharged the debt indirectly. Such an involvement has no bearing on the substance of the decision given by the court of the Member State of origin which established the maintenance claim.

Ruling of the 3rd Chamber

 

  • Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations is to be interpreted as meaning that an application opposing enforcement brought by the maintenance debtor against enforcement of a decision given by a court of the Member State of origin and which established that debt, which has a close link with the procedure for enforcement, falls within its scope and is within the international jurisdiction of the courts of the Member State of enforcement.

 

  • Pursuant to Article 41(1) of Regulation No 4/2009 and to the relevant provisions of national law, it is for the referring court, being a court of the Member State of enforcement, to adjudicate on the admissibility and the validity of the evidence adduced by the maintenance debtor, seeking to support the submission that he has predominantly discharged his debt.

 

  • Cost to be decided by the national court.

 

References:

[1] Rules referred to in the judgement: (I.) Recitals 9 to 11, 30 and 44 , Art. 1 (1) , 2 , 3, 8 (1) , Chapter IV and Art. 41 , 42 and Art. 64(2) of Regulation No 4/2009; (II.) Recital 10 , Art. 1 and Art 24 of Regulation No 1215/2012; (III.) Domestic Law (Germany): 767 ZPO (“Zivilprozessordnung” = “Civil Process Law”) ; (IV.) para 120 (1) FamFG (“Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit” = Law on proceedings in family matters and matters subject to non-contentious proceedings) and paragraph 40 and 66 AUG (“Auslandsunterhaltsgesetz” = Law on the recovery of maintenance in relation with foreign States).

[2] As some parts of German Legal Literature believes that it is a related matter. But another opinion has German legislature which believes that the German Court has jurisdiction and the original (polish) enforcement order continues and remains untouched.

[3] The District Court finds that the Judgments AS-Autoteile Service (220/84 EU:C:1985:302) 4.7.1985 and Prism Investments (C‑139/10 EU:C:2011:653) 13.10.2011 are not capable of providing an answer to that question. Indeed, they were delivered in the regulatory framework preceding the entry into force of Regulation No 4/2009. In addition, pursuant to Article 1(2)(e) of Regulation No 1215/2012, that regulation does not apply to maintenance obligations.

[4] See Judgment of 9 February 2017, S., C‑283/16, EU:C:2017:104, [32].

[5] See, to that effect, judgment of 4 July 1985, AS-Autoteile Service, 220/84, EU:C:1985:302 [12].

[6] See judgment of 18 December 2014, Sanders and Huber, C‑400/13 and C‑408/13, EU:C:2014:2461, [40].

[7] See to that effect, judgment of 8 December 2014, Sanders and Huber, C‑400/13 and C‑408/13, EU:C:2014:2461, [29].

[8] See judgment of 8 December 2014, Sanders and Huber, C‑400/13 and C‑408/13, EU:C:2014:2461, [41].

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