EUROPEAN PRIVATE INTERNATIONAL LAW

EUROPEAN PRIVATE INTERNATIONAL LAW
Ester di Napoli LUMSA University, Rome 9-10 March 2019

MAINTENANCE OBLIGATIONS
UNDER REGULATION EU N. 4/2009 FROM Article 5 para 2 of Brussels I Regulation “A person domiciled in a Member State may, in another Member State, be sued: … 2. in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties;…” TO 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 (the Maintenance Regulation)

UNDER REGULATION EU N. 4/2009 - material scope of application: maintenance obligations are excluded by the material scope of application of Brussels II bis regulation; “maintenance obligations arising from a family relationship, parentage, marriage or affinity” (art. 1)  where maintenance obligations are object of the main proceedings or they are ancillary The rules on conflict of laws applicable under this Regulation determine only the law applicable to maintenance obligations and do not determine the law applicable to the establishment of the family relationships on which the maintenance obligations are based. The establishment of family relationships continues to be covered by the national law of the Member States, including their rules of private international law temporal scope of application: 18 June 2011 in the then 27 MS/1st July 2013 in Croatia;

UNDER REGULATION EU N. 4/2009 - personal scope of application: In order to preserve the interests of maintenance creditors and to promote the proper administration of justice within the European Union, the rules on jurisdiction as they result from Regulation (EC) No 44/2001 should be adapted. The circumstance that the defendant is habitually resident in a third State should no longer entail the non-application of Community rules on jurisdiction, and there should no longer be any referral to national law. Where the heads of jurisdiction are met

UNDER REGULATION EU N. 4/2009 76 Articles; IX Chapters Chapter I (articles 1-2): scope and definitions Chapter II (articles 3-14): rules on jurisdiction Chapter III (article 15): conflict of law rules Chapter IV (articles 16-43): recognition, enforceability and enforcement of decisions Chapter V (articles 44-47): legal aid Chapter VI (article 48): court settlements and authentic instruments Chapter VII (articles 49-63): co-operation between Central Authorities Chapter VIII (article 64): claims by public bodies Chapter IX (articles 65-76): general and final provisions narrow “dialogue” between EU PIL and the “Law of The Hague” (the –then – European Community ratified the HCCH on 2007)

UNDER REGULATION EU N. 4/2009 While the Maintenance Regulation was under adoption:  the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (“the 2007 Hague Protocol”) was adopted 30th November 2009 the EC Council adopted Decision 2009/941 approving the conclusion of the Protocol by the European Community, making it applicable within the EU (exception made for UK and Denmark  national maintenance obligation PIL rules have not been affected): “Within the Community, the rules of the Protocol shall apply provisionally, without prejudice to Article 5 of this Decision, from 18 June 2011, the date of application of Regulation (EC) No 4/2009, if the Protocol has not yet entered into force on that date” How does a Treaty enter into force?  art. 25

UNDER REGULATION EU N. 4/2009 The Protocol entered into force on 1 August Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (2007 Hague Convention) Council Decision 2011/220

rules on jurisdiction Article 3: general provision  - request on maintenance obligations as main proceedings - request on maintenance obligations as ancillary proceedings Article 4: choice of court

rules on jurisdiction In matters relating to maintenance obligations in Member States, jurisdiction shall lie with: (a) the court for the place where the defendant is habitually resident, or (b) the court for the place where the creditor is habitually resident, or (c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or (d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.

rules on jurisdiction On 16 July 2015, the European Court of Justice (ECJ) rendered its judgment in the case of A v. B (C-184/14), clarifying the interpretation of article 3(c)and(d). Main proceedings: legal separation of two Italians + custody of their children started by A (the husband) against B (the wife) before the District Court of Milan (IT) under Brussels II bis Regulation YES jurisdiction over matrimonial matters (article 3(1)(b)) NO jurisdiction over parental responsibility (condition under article 8 was not met)

rules on jurisdiction The Court of Milan further held that, according to Article 3(c) and (d) of the Maintenance Regulation, it had jurisdiction to decide on the issue of maintenance for the benefit of the wife, but not to decide on maintenance for the benefit of the children, since the latter request was not ancillary to proceedings over personal status, but to proceedings concerning parental responsibility. The issue was whether the heads of jurisdiction set out in Article 3(c) and (d) of the Maintenance Regulation must be understood to be mutually exclusive, or whether the conjunction “or” in the provision implies that the courts that have jurisdiction over legal separation and parental responsibility may be both validly seised of an application relating to maintenance in respect of children.

rules on jurisdiction The ECJ held that: - “ancillary matter” cannot be left to the discretion of the courts of each Member State according to their national law; - rules on jurisdiction relating to parental responsibility underlie a concern for the best interests of the child, and “an application relating to maintenance in respect of minor children is … intrinsically linked to proceedings concerning matters of parental responsibility”

rules on jurisdiction The ECJ held that: - the court to which jurisdiction is conferred to decide on parental responsibility should be the court that finds itself “in the best position to evaluate in concreto the issues involved in the application relating to child maintenance, to set the amount of that maintenance intended to contribute to the child’s maintenance and education costs, by adapting it, according to (i) the type of custody (either jointly or sole) ordered, (ii) access rights and the duration of those rights and (iii) other factual elements relating to the exercise of parental responsibility brought before it”.

rules on jurisdiction The ECJ held that:  when the court of a Member State is seised of proceedings concerning legal separation or divorce between the parents of a minor child, and the court of another Member State is seised of proceedings involving matters of parental responsibility over the same child, Article 3(c) and (d) of Regulation No 4/2009 must be interpreted as meaning that an application relating to maintenance concerning that child is ancillary only to the proceedings concerning parental responsibility, with the meaning of Article 3(d) of that Regulation

rules on jurisdiction In order to increase legal certainty, predictability and the autonomy of the parties. To protect the weaker party, such a choice of court should not be allowed in the case of maintenance obligations towards a child under the age of The parties may agree that the following court or courts of a Member State shall have jurisdiction to settle any disputes in matters relating to a maintenance obligation which have arisen or may arise between them: (a) a court or the courts of a Member State in which one of the parties is habitually resident; (b) a court or the courts of a Member State of which one of the parties has the nationality; (c) in the case of maintenance obligations between spouses or former spouses: (i) the court which has jurisdiction to settle their dispute in matrimonial matters; or (ii) a court or the courts of the Member State which was the Member State of the spouses’ last common habitual residence for a period of at least one year. (…)

rules on jurisdiction The jurisdiction conferred by agreement shall be exclusive unless the parties have agreed otherwise A choice of court agreement shall be in writing. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’ This Article shall not apply to a dispute relating to a maintenance obligation towards a child under the age of If the parties have agreed to attribute exclusive jurisdiction to a court or courts of a State party to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (18), signed on 30 October 2007 in Lugano (hereinafter referred to as the Lugano Convention), where that State is not a Member State, the said Convention shall apply except in the case of the disputes referred to in paragraph 3.

CONFLICT OF LAW RULES It should be provided in this Regulation that, for Member States bound by the 2007 Hague Protocol, the rules on conflict of laws in respect of maintenance obligations will be those set out in that Protocol. To that end, a provision referring to the said Protocol should be inserted. The 2007 Hague Protocol will be concluded by the Community in time to enable this Regulation to apply. To take account of a scenario in which the 2007 Hague Protocol does not apply to all the Member States a distinction for the purposes of recognition, enforceability and enforcement of decisions needs to be made in this Regulation between the Member States bound by the 2007 Hague Protocol and those not bound by it

CONFLICT OF LAW RULES Article 15 - Determination of the applicable law 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 2007 Hague Protocol) in the Member States bound by that instrument. Universal application Article 3 : General rule on applicable law (1) Maintenance obligations shall be governed by the law of the State of the habitual residence of the creditor, save where this Protocol provides otherwise. (2) In the case of a change in the habitual residence of the creditor, the law of the State of the new habitual residence shall apply as from the moment when the change occurs.

CONFLICT OF LAW RULES + Article 8 – designation of the applicable law 1) Notwithstanding Articles 3 to 6, the maintenance creditor and debtor may at any time designate one of the following laws as applicable to a maintenance obligation a) the law of any State of which either party is a national at the time of the designation; b) the law of the State of the habitual residence of either party at the time of designation; c) the law designated by the parties as applicable, or the law in fact applied, to their property regime; d) the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation.

CONFLICT OF LAW RULES - agreement shall be in writing or recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference, and - shall be signed by both parties. - Paragraph 1 shall not apply to maintenance obligations in respect of a person under the age of 18 years or of an adult who, by reason of an impairment or insufficiency of his or her personal faculties, is not in a position to protect his or her interest. - notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the State of the habitual residence of the creditor at the time of the designation. - unless at the time of the designation the parties were fully informed and aware of the consequences of their designation, the law designated by the parties shall not apply where the application of that law would lead to manifestly unfair or unreasonable consequences for any of the parties.

MAINTENANCE OBLIGATIONS Rules on recognition and enforcement
- Decisions in matters relating to maintenance obligations given in a Member State should in principle be provisionally enforceable - In order to limit the costs of enforcement proceedings, no translation should be required unless enforcement is contested, and without prejudice to the rules applicable to service of documents  Section 1: decisions given in a Member State bound by the 2007 Hague Protocol  Section 2: decisions given in a Member State not bound by the 2007 Hague Protocol

 Section 1 (art. 17): decisions given in a Member State bound by the 2007 Hague Protocol (all MS with the exception of Denmark and UK) - no exequatur procedure  recognized in another MS without any special procedure being required and without any possibility of opposing its recognition A decision given in a Member State bound by the 2007 Hague Protocol which is enforceable in that State shall be enforceable in another Member State without the need for a declaration of enforceability.

 Section 1 (art. 17): decisions given in a Member State bound by the 2007 Hague Protocol (all MS with the exception of Denmark and UK) - no exequatur procedure: documents for the purposes of enforcement: copy of the decision – authenticity extract – Annex 1 amount of the credit where necessary: translation (however, it may be required if the enforcement is challenged) Article 21: refusal or suspension of enforcement

 Section 2: decisions given in a Member State not bound by the 2007 Hague Protocol (UK and Denmark): automatic recognition + Article 24 – grounds of refusal of recognition Article 26 – enforceability A decision given in a Member State not bound by the 2007 Hague Protocol and enforceable in that State shall be enforceable in another Member State when, on the application of any interested party, it has been declared enforceable there. Article 45 –legal aid (more info: Article 48 - Application to court settlements and authentic instruments

International cooperation between central authorities To facilitate cross-border recovery of maintenance claims, provision should be made for a system of cooperation between Central Authorities designated by the Member States. These Authorities should - assist maintenance creditors and debtors in asserting their rights in another Member State by submitting applications for recognition, enforceability and enforcement of existing decisions, for the modification of such decisions or for the establishment of a decision - exchange information in order to locate debtors and creditors, and identify their income and assets, as necessary - cooperate with each other by exchanging general information and promoting cooperation amongst the competent authorities in their Member States

IN FAMILY MATTERS: “ROME iii” REGULATION
CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (“Rome III”) July 2010, the Council adopts Decision 2010/405/EU authorizing enhanced cooperation in the area of the law applicable to divorce and legal separation between Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia (14 “participating Member States”)  applicable on 21 June November 2012, the Commission adopts Decision 2012/714/EU confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation. That Decision foresees that Regulation (EU) No 1259/2010 shall apply to Lithuania from 22 May 2014.

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION - 27 January 2014, the Commission adopts Decision 2014/39/EU confirming the participation of Greece in enhanced cooperation in the area of the law applicable to divorce and legal separation. That Decision foresees that Regulation (EU) No 1259/2010 shall apply to Greece from 29 July August 2016, the Commission adopts Decision (EU) No 2016/1366 confirming the participation of Estonia in enhanced cooperation in the area of the law applicable to divorce and legal separation. That Decision foresees that Regulation (EU) No 1259/2010 shall apply to Estonia from 11 February Territorial scope of application  17 participating Member States

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION - Material scope of application (art. 1): it shall apply, in situations involving a conflict of laws, to divorce and legal separation (not to marriage annulment) Relation with Regulation (EC) No 2201/2003: “This Regulation shall not affect the application of Regulation (EC) No 2201/2003” Universal application (art. 4) - The law designated by this Regulation shall apply whether or not it is the law of a participating Member State.

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION Article 5 (Choice of applicable law by the parties) 1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws: (a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or (b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or (c) the law of the State of nationality of either spouse at the time the agreement is concluded; or (d) the law of the forum. 2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized. 3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum.

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION Material validity (art. 6) Formal validity (art. 7) - in writing (also any communication by electronic means which provides a durable record) - dated and signed by both spouses. Any of the agreement shall be deemed equivalent to writing - if the law of the participating Member State in which the two spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for this type of agreement, those requirements shall apply - if only one of the spouses is habitually resident in a participating Member State at the time the agreement is concluded and that State lays down additional formal requirements for this type of agreement, those requirements shall apply

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION Article 8 - Applicable law in the absence of a choice by the parties In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State: (a) where the spouses are habitually resident at the time the court is seized; or, failing that (b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that (c) of which both spouses are nationals at the time the court is seized; or, failing that (d) where the court is seized.

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION Article 10 - Application of the law of the forum Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply. Article 11 - Exclusion of renvoi Where this Regulation provides for the application of the law of a State, it refers to the rules of law in force in that State other than its rules of private international law. Article 12 - Public policy Application of a provision of the law designated by virtue of this Regulation may be refused only if such application is manifestly incompatible with the public policy of the forum. Article 13 - Differences in national law Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation.

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION Article 14 - States with two or more legal systems — territorial conflicts of laws Where a State comprises several territorial units each of which has its own system of law or a set of rules concerning matters governed by this Regulation: (a) any reference to the law of such State shall be construed, for the purposes of determining the law applicable under this Regulation, as referring to the law in force in the relevant territorial unit; (b) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit; (c) any reference to nationality shall refer to the territorial unit designated by the law of that State, or, in the absence of relevant rules, to the territorial unit chosen by the parties or, in absence of choice, to the territorial unit with which the spouse or spouses has or have the closest connection.

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION Article 15 - States with two or more legal systems — inter-personal conflicts of laws In relation to a State which has two or more systems of law or sets of rules applicable to different categories of persons concerning matters governed by this Regulation, any reference to the law of such a State shall be construed as referring to the legal system determined by the rules in force in that State. In the absence of such rules, the system of law or the set of rules with which the spouse or spouses has or have the closest connection applies.  Non-application of this Regulation to internal conflicts of laws

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION Judgment of the Court of 20 December 2017, case C-372/16, Soha Sahyouni v Raja Mamisch Recognition of a private divorce obtained before a religious court in a third country — Scope of the regulation Mr Mamisch and Ms Sahyouni married within the jurisdiction of the Islamic Court of Homs (Syria). Mr Mamisch has held Syrian nationality from birth, in 1977 he acquired German nationality by naturalisation. Since that year, he held both nationalities. Ms Sahyouni has held Syrian nationality from birth. She acquired German nationality following her marriage.

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION The couple lived in Germany until 2003, when they moved to Homs. In summer 2011, on account of the civil war in Syria, they returned to Germany for a short time and subsequently, from February 2012, lived alternately in Kuwait and Lebanon. During that time they also stayed in Syria on a number of occasions. Both parties are currently living in Germany again, at different addresses. On 19 May 2013, Mr Mamisch declared his intention to dissolve his marriage by having his representative pronounce the divorce formula before the religious sharia court in Latakia (Syria). On 20 May 2013, that court declared the couple divorced. On 12 September 2013, Ms Sahyouni signed a declaration that she was to receive from Mr Mamisch, under religious law, a total of USD (approximately EUR 16945).

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION On 30 October 2013, Mr Mamisch applied for recognition of the divorce pronounced in Syria; the President of the Oberlandesgericht München (Higher Regional Court, Munich, Germany) granted that application, finding that the statutory requirements for recognition of that divorce were satisfied. On 18 February 2014, Ms Sahyouni applied to have that decision set aside and a declaration made that the requirements for recognition of the divorce were not satisfied.  a “first” order of 12 May 2016, Sahyouni (C‑281/15)

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION In support of its request for a preliminary ruling, the referring court points out that divorces pronounced in third countries are recognised in Germany under the procedure laid down in Paragraph 107 of the FamFG. Furthermore, as regards the recognition of private divorces, it is commonly accepted that the German courts carry out an assessment of the validity of the substantive requirements of such divorces in the light of Regulation No 1259/2010. That legal practice results from the removal by the German legislature, following the entry into force of that regulation, of the provision relating to the substantive law applicable to the divorce. Such a removal, it states, is based on the fact that the German legislature, considering that private divorces also come within the scope of that regulation, has taken the view that the previous provision had become obsolete, precisely as a result of that regulation.

CONFLICT OF LAWS RULES IN FAMILY MATTERS: “ROME iii” REGULATION  Does the scope of [Regulation No 1259/2010], as defined in Article 1 of that regulation, also include cases of private divorce, in this instance one pronounced by unilateral declaration of a spouse before a religious court in Syria on the basis of sharia?  para. 39 “the regulation covers exclusively divorces pronounced either by a national court or by, or under the supervision of, a public authority. Moreover, the fact that Article 18(1) of Regulation No 1259/2010 makes reference to ‘legal proceedings’ supports that conclusion”  Accordingly, in the light of the definition of the concept of ‘divorce’ in Regulation No 2201/2003, it is clear from the objectives pursued by Regulation No 1259/2010 that the latter regulation covers solely divorces pronounced either by a national court or by, or under the supervision of, a public authority (para. 48)

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