1. 1 THE 2007 HAGUE CONVENTION AND PROTOCOL & NEW EU MAINTENANCE REGULATION The Right to Judicial Protection: Administration of Justice in Cross-border Disputes Belgrade, 20 November 2010 Philippe LORTIE, First Secretary Hague Conference on Private International Law

2. 2 States involved in the Hague negotiations from 2003 until 2007

3. 3 KEY FEATURES OF NEW INSTRUMENTS Universality Accessibility Simplicity & Flexibility Speed & Efficiency Cost-effectiveness Responsive and fair Non-discrimination Co-operation and compliance

4. 4 PRINCIPAL COMPONENTS OF NEW INSTRUMENTS System of administrative co-operation swift and efficient for the treatment of applications between Contracting States and Member States Procedures available in States for establishment, recognition and enforcement, modification of decisions Effective access to procedures / Legal Aid Recognition and enforcement of foreign decisions / orders (maximum recognition, simple procedures) – Within Union abolition of exequatur Swift and effective enforcement Compliance – Monitoring and review Direct requests to competent authorities Rules of direct jurisdiction within the Union Applicable law rules (optional for the Convention)

5. 5 SCOPE OF APPLICATION OF CONVENTION Entire Convention applies on a mandatory basis to maintenance cases of persons under the age of 21 (possible to reserve for persons under the age of 18) Convention also covers spousal support but its provision on administrative co-operation will only apply to spousal support where States have made a declaration Application of any part of the Convention could be extended by way of declaration (with reciprocal effect) to other maintenance obligations arising from a family relationship, parentage, marriage or affinity Application of the Convention could be extended to vulnerable adults Convention applies to children regardless of the marital status of the parents

6. 6 SCOPE OF APPLICATION OF REGULATION All maintenance obligations arising from a:  Family relationship  Parentage  Marriage  Affinity

7. 7 ADMINISTRATIVE CO-OPERATION Administrative co-operation implemented using Central Authorities (CAs) System free of costs CAs focal point in relation to specific functions: –Transmitting and receiving applications –Initiating or facilitating proceedings

8. 8 ADMINISTRATIVE CO-OPERATION (Specific applications – Convention) Convention will provide for specific applications using recommended forms: –Recognition and enforcement of Contracting States decisions –Enforcement of requested State decision –Establishment of decision in requested State when no existing decision or when enforcement of existing decision impossible –Modification of decisions either by creditor or debtor Time lines and responsiveness Means of communication

9. 9 ADMINISTRATIVE CO-OPERATION (Specific applications – Regulation) Regulation will provide for specific applications using recommended forms for: –Recognition and enforcement of decisions –Establishment or modification of decisions Time lines and responsiveness Means of communication Languages

10. 10 Provide or facilitate the provision of legal assistance, where the circumstances require Help locate debtor / creditor Help obtain information about financial circumstances Encourage amicable solutions Facilitate enforcement Facilitate transfer of payments Facilitate obtaining of documentary and other evidence Assistance in establishing parentage Help in obtaining provisional measures Facilitate service of documents OTHER CENTRAL AUTHORITY FUNCTIONS

11. 11 Requests for specific measures (limited service requests) when no application under Article 10 is pending: –Help locate debtor / creditor –Help obtain information about financial circumstances –Facilitate obtaining of documentary and other evidence –Assistance in establishing parentage –Help in obtaining provisional measures –Facilitate service of documents Central Authority may also take specific measures on the request of another Central Authority in relation to a pending case having an international element OTHER CENTRAL AUTHORITY FUNCTIONS (cont.)

12. 12 EFFECTIVE ACCESS TO PROCEDURES CONVENTION All Contracting States obliged to provide effective access to procedures, including enforcement and appeal procedures, by providing: Simple procedures with the assistance of CAs allowing the applicant to proceed without further assistance Free legal assistance for applications for establishment and for recognition and enforcement of child support decisions (with some exceptions) A State may, as an alternative, declare that it will apply a “child-centred” means test, in cases involving establishment of child support For all other applications processed through CAs under the Convention legal assistance may be subject to a means or merits test

13. 13 ACCESS TO JUSTICE REGULATION Symmetry between the rules of the Convention and those of the Access to Justice Directive Entitlement to legal aid Scope of legal aid Specific scheme concerning maintenance obligations in respect of children initiated via the Central Authorities Automatic entitlement to legal aid with regard to recognition, enforceability and enforcement

14. 14 RULES OF DIRECT JURISDICTION OF THE REGULATION Following the rules of the Brussels I Regulation Jurisdiction with regard to parental responsibility proceedings if the application for maintenance is ancillary to those proceedings Subsidiary jurisdiction based on the common nationality of the parties Creation of a forum necessitatis Safeguards in relation to choice of court

15. 15 RECOGNITION AND ENFORCEMENT CONVENTION Convention applies to judicial and administrative decisions, settlements, “maintenance agreements” (authentic instruments) Main bases for recognition and enforcement (indirect jurisdiction) –Respondent habitually resident in the State of origin –Respondent submitted to the jurisdiction –Creditor habitually resident in the State of origin (reservation possible) –Child resident in the State of origin when proceedings instituted and respondent lived with the child there or resided there and provided support for the child there –Agreement to the jurisdiction by the parties except in the case of child support (reservation possible) –Authority exercising jurisdiction on a matter of personal status or parental responsibility (reservation possible)

16. 16 RECOGNITION AND ENFORCEMENT CONVENTION (cont.) Grounds for refusing recognition and enforcement Decision manifestly incompatible with public policy Decision obtained by fraud relating to procedure Competition between pending case and foreign decision concerning the same parties and having the same purpose Conflicting decisions (res judicata) No proper notice or opportunity to be heard Debtor exceeded limits on proceedings (Article 18)

17. 17 PROCEDURES FOR RECOGNITION AND ENFORCEMENT Registration for enforcement –grounds for refusal are limited –no submissions from the parties Challenge or appeal within limited time and on limited grounds Further appeal if permitted by law of State addressed, without staying the enforcement of the decision Alternative procedure Linkage with national enforcement procedures

18. 18 RECOGNITION AND ENFORCEMENT REGULATION Double corridor Provisional enforceability Abolition of the exequatur for all the maintenance claims Counterpart of the abolition of the exequatur: right to apply for a review of the decision Formalities relating to the enforcement Refusal or suspension of enforcement Procedures and conditions for enforcement

19. 19 ENFORCEMENT MEASURES Weakness under existing child support systems has been a lack of effective enforcement mechanisms The proposed Regulation included enforcement measures which the Council suppressed While choice of specific enforcement measures are left to the requested State, States are required to make available effective enforcement measures Convention provides a list of possible measures that a State might, at its option, use, including –Wage withholding –Garnishment –Deductions from social security payments –Lien on or forced sale of property –Tax refund withholding –License denial or suspension

20. 20 COUNTRY PROFILE

21. 21 COUNTRY PROFILE (cont.) States answers to the Country Profile questionnaire will provide information on the administrative, operational, and policy requirements a Requesting State needs to know before processing cases in a Requested State Contracting States may utilise the Country Profile to fulfil their obligation under the Convention The Country Profile would be completed online through a secured access on the Hague Conference website The Country Profile could be used as a source of good practices The Diplomatic Session gave unanimous support to the Country Profile which has been adopted at a Special Commission in the autumn of 2009

22. 22 RECOMMENDED FORMS

23. 23 RECOMMENDED FORMS (cont.) Medium and language neutral forms Could be used in a paper or electronic environment Could be completed in one language and read in another, therefore significantly reducing translation costs Mandatory forms that countries must use include the “Transmittal Form” and the “Acknowledgment Form” (see Annex to the Convention) Recommended Forms have been adopted during a Special Commission held in the autumn of 2009

24. 24 Additional Recommended Forms adopted at the autumn 2009 Special Commission Application for Recognition or Recognition + Enforcement Application for Enforcement of a Decision Made or Recognized in the Requested State Application for Establishment of a Decision Application for Modification of a Decision Status of Application Reports Abstract of a Decision Statement of Enforceability of a Decision Statement of Proper Notice Financial Circumstances Form

25. 25 COMPLIANCE AND EFFECTIVE IMPLEMENTATION MONITORING & REVIEW OF CONVENTION Special Commission periodically to review the practical operation of the Convention Development of good practices for the implementation and operation of the Convention Gathering of information, such as laws and procedures, concerning the practical operation of the Convention (Country Profiles) Gathering of statistics and case law in relation to the Convention Development and amendment of standard forms Development of iSupport (electronic case management and communication system)

26. 26 COMING INTO FORCE AND MONITORING OF THE REGULATION Coming into force 30 months after adoption Regulation replaces Brussels I and the European Enforcement Order Supply of information by Member States Dissemination of information : the role of the European Judicial Network in Civil and Commercial Matters Amendments to the forms in accordance with the advisory procedure Review clause Judicial review by the ECCJ

27. 27 PROTOCOL ON APPLICABLE LAW Scope of application Determines the law applicable to maintenance obligations arising from a family relationship, parentage, marriage or affinity, including a maintenance obligation in respect of a child regardless of the marital status of the parents Decisions rendered in application of the Protocol are without prejudice to the existence of any of the relationships referred to above Protocol is of universal application In the Protocol the term “law” means the law in force in a State other than its choice of law rules

28. 28 PROTOCOL ON APPLICABLE LAW Scope of the applicable law (inter alia) Whether, to what extent and from whom the creditor may claim maintenance Extent to which the creditor may claim retroactive maintenance Basis for calculation of the amount of maintenance, and indexation Who is entitled to institute maintenance proceedings (except procedural capacity and representation issues) Prescriptions and limitation periods Extent of the obligation of a debtor where a public body seeks reimbursement

29. 29 PROTOCOL ON APPLICABLE LAW General rule Maintenance obligations governed by the law of the State of the habitual residence of the creditor Law of the State of the new habitual residence applies at the moment the change occurs Special rules favouring certain creditors Parents towards their children Persons, other than parents, towards persons who have not attained the age of 21 years Children towards their parents

30. 30 PROTOCOL ON APPLICABLE LAW Special rules favouring certain creditors (cont.) If creditor unable by virtue of the law of its habitual residence to obtain maintenance, the law of the forum shall apply If creditor seizes the competent authority of the State where the debtor has its habitual residence, the law of the forum shall apply If creditor unable by virtue of the laws referred above to obtain maintenance, the law of the common nationality, if there is one, shall apply

31. 31 PROTOCOL ON APPLICABLE LAW Special rule with respect to spouses and ex-spouses The law of the State of the habitual residence of the creditor shall not apply if one of the parties objects and the law of another State (e.g. State of their last common habitual residence) has a closer connection with the marriage Special rule on defence In the case of maintenance obligations other than those arising from a parent-child relationship towards a child and spouses and ex-spouses, debtor may contest a claim on the ground that there is no such obligation under its law and the law of the State of common nationality

32. 32 PROTOCOL ON APPLICABLE LAW Other special features Rules concerning the designation of the law applicable for the purpose of a particular proceeding Rules concerning the designation at any time of specific laws as applicable to a maintenance obligation (not applicable to maintenance obligations in respect of a person under the age of 18 years or a vulnerable adult) Possibility to replace the concept of “nationality” by the one of “domicile” Provision on “public bodies” Compensation awarded to the creditor taken into account in determining the amount of maintenance