European Model(s) of Protective Measures in Cross-Border Maintenance Debt Recovery

Mirela ŽupanProfessor at Faculty of Law University of Osijek Croatia

Contents Cross border maintenance recovery – state of play in

global and European context

Protective measures in European contex

Conclusions

Maintenance regulation

EAPO regulation Synergy with Hague 2007 Convention

Global level0 United Nations

0Convention on the Recovery Abroad of Maintenance, New York, 20 June 1956.

0 Hague Conference on Private International Law

0Convention of 24 October 1956 on the law applicable to maintenance obligations towards children; Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children;

0Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations.

0Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance

0Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations

European level

0Brussels Convention of 1968.

0Regulation (EC) No 44/2001 of the Council of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

0Council 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

0Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters

Maintenance obligationsRegulation No. 4/2009

0 enacted in 2008, applicable since 2011.

0 regulates

0 unified rules of jurisdiction, applicable law, recognition and enforcement of decisions and cooperation through central authorities

0 free circulation of the judgments - doctrine of mutual trust enables abolishing of exequatur

0provisional measures within its scope

CHAPTER II JURISDICTION, Article 14 Provisional, including protective, measures

Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that State, even if, under this Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.

Double track system - provisional measures can be undertaken by:

court of a Member State having jurisdiction for merits

court of a Member State not having jurisdiction on the merits but urgent measures are needed!

possible problem: several courts could issue parallel protective measures!

Wording of Article 14 is a near copy of similar provisions in:

0Article 31 of Regulation No. 44/2001 (ex Art. 24 BC)

0Article 35 of the Regulation No. 1215/2012

0Article 38 of the Insolvency Regulation

0placing of provision within each respective instrument was diverse

0 it led to different outcomes in practical operation on cross-border enforcement of provisional measures!

EU Court interpretation

0Denilauler and Van Uden0 EU Court attempts to reduce the risk of forum shopping0 „reel connection link” required between the court issuing the

protective measure and the measure itself

0 Van Uden 0additional conditions for granting the measure

0 Mietz0additional conditions for enforcing the measure

0 only specific measures are touched upon these rulings – provisional payment of money

Wording is different in Regulation No. 2201/20030aim is to secure sensitive family relations

o Article 20 (as Art. 11 HC 1996)

EU Court interpretation0Purrucker I - C-256-09

0 confirmes that Art. 20 does not create a ground of (international) jurisdiction

0 it refers to possibilities offered on the basis of the national grounds of jurisdiction of the Member State concerned

0 clarified that the provisions of on recognition, enforceability and enforcement of the 2201/2003 Regulation do not apply to measures taken by the court not being competent to rule on merits!

Maintenance regulation

Protective measure issued by court of the merits

0 cross-border effects of protective measures

0previous interpretations of CJEU relevant

0 cross border effect is blocked in ex parte proceedings!

Protective measure issued by other court

0 Protective measures are effectuated by national law:

0 any available measure under national law works

0 diversity of national rules and procedures inconvenient to applicants

0when a decision must be recognised in accordance with the Regulation originating from a 0 state bound by Hague Protocol0 state not bound with the Hague Protocol

0applicant my avail himself of provisional, including protective, measures in accordance with the law of the Member State of enforcement0 without a declaration of enforceability according to art.

30 being required

Cross-border recovery of maintenance taking account

of the new European Account Preservation Order

EAPO

0adopted in 2014, applicable from 20170 separate and standalone Europe-wide order – paralel

to national preservation orders 0applicable only only in cross-border cases

0 where the relevant bank account is held in a different Member State to where the EAPO application is made or the creditor is domiciled.

0 creditor can obtain an EAPO to effectively freeze the debtor’s funds: 0 held in EU banks (except UK, Denmark)0 up to a specified amount

0 maintenance creditor apply without notice to prevent transfer or withdrawal of funds held by a maintenance debtor

0 Preservation order application procedure 0 in principle an ex parte written procedure0 based on information and evidence provided by the creditor.

o Preservation order is issued by a court with jurisdiction on the merits o significant degree of discretion is left to the court when assessing

the pericolo in moro element0 creditor has to provide security in certain circumstances0 creditor is liable for damage caused to the debtor by the EAPO

where the creditor is at fault.

0 Maintenance debtor is provided with legal remedies to challenge the Order.

Synergy with Hague 2007

Maintenance Convention

0EU plays active role also external relations of it’s Member States

0EU is a contracting state of Hague 2007 Convention

0Central authority can play a significant role in effectuating protective measures in cross border cases

0Articles 6(2) i) and Article 7 of the Convention

0Specific functions of CA is

i) to initiate or facilitate the institution of proceedings to obtain any necessary provisional measures that are territorial in nature and the purpose of which is to secure the outcome of a pending maintenance application

0CA can make rrequests for specific measures

Concluding remarks

0European judicil area has significant effects to cross border provisional measures in:0 european trial0 international trial

0Maintenance regulation has costs and benefits 0 EU Court rulings complement the legislative system

0EAPO is alternative to national rules 0 one order can freeze numerous banc account accros EU

0Synergy of EU and HCCH creates benefits of the debtors0 Central Authority is logistical tool to protective measures

mzupan@pravos.hr