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COUNCIL OF

THE EUROPEAN UNION

Brussels, 10 October 2008 (14.10)

(OR. fr)

Interinstitutional File:

2005/0259 CNS

13845/08

LIMITE



JUSTCIV 206



NOTE

from :	Presidency

to :	Permanent Representatives Committee

No. prev. doc. :	13583/08 JUSTCIV 198 + ADD 1

No. Cion prop. :	5199/06 JUSTCIV 2

Subject :	Proposal for a Council Regulation on jurisdiction, applicable
law, recognition and enforcement of decisions and cooperation in matters
relating to maintenance obligations

- Political agreement



I.	INTRODUCTION

1.	By letter of 12 January 2006, the Commission transmitted to the
Council a proposal for a Council Regulation on jurisdiction, applicable
law, recognition and enforcement of decisions and cooperation in matters
relating to maintenance obligations, based on Articles 61(c) and 67(2)
of the Treaty establishing the European Community.

2.	The European Parliament delivered its opinion on 13 December 2007.



3.	In accordance with Articles 1 and 2 of the Protocol on the position
of Denmark, annexed to the Treaty on European Union and to the Treaty
establishing the European Community, Denmark does not take part in the
adoption of the Regulation and is not bound by it or subject to its
application.

4.	In accordance with Article 3 of the Protocol on the position of the
United Kingdom and Ireland, annexed to the Treaty on European Union and
to the Treaty establishing the European Community, Ireland has given
notice of its wish to take part in the adoption and application of the
Regulation.

5.	The United Kingdom is not taking part in the adoption and application
of the Regulation since it did not exercise its right to take part under
Article 3 of the above Protocol.  However, the United Kingdom has
already expressed interest in taking part in the application of the
Regulation by accepting it after its adoption in accordance with
Article 4 of the above Protocol.

6.	The draft Regulation was referred to the Justice and Home Affairs
Council twice, in April 2007 and in June 2008, for identification of
the guidelines to be followed and agreement on certain aspects.

7.	The negotiations made good progress in 2007 and 2008 on the basis of
these guidelines.  Agreement was reached on significant aspects. 
Firstly, the future Regulation improves the legal aid scheme for
proceedings concerning a parent's maintenance obligations in respect of
a child below the age of 21.  Secondly, it provides that Central
Authorities will assist with all applications relating to maintenance
obligations, whatever their nature.  In the light of the progress made,
the Presidency considers that the dossier is ready to be submitted to
the Council for a political agreement.



8.	Owing to its subject matter and purpose, the future Regulation is of
very great importance to many Member States and to the Presidency.  The
Presidency has set it as one of its priorities and intends to do its
utmost to meet the expectations of Member States by securing its
adoption before the end of 2008.

9.	Accordingly, the Presidency hereby submits to Coreper a seven-point
overall compromise as set out in Part II below and the enacting terms
of the Regulation as contained in Addendum 1 to this note .P 

II.	ELEMENTS OF AN OVERALL COMPROMISE

(a)	Subsidiary jurisdiction and forum necessitatis (Articles 6
and 6-0)

10.	The compromise approved by the Justice and Home Affairs Council in
June provided that the future Regulation would contain a provision on
subsidiary jurisdiction.

11.	In line with that compromise, the Presidency proposes an initial
rule of jurisdiction based on the common nationality of the parties and
a second rule of jurisdiction based on forum necessitatis (Articles 6
and 6-0).  The latter rule covers the cases where the courts of a third
country with which the dispute is closely connected cannot exercise
jurisdiction for exceptional reasons. In that case, the future
Regulation provides that the courts of a Member State may hear the case
provided that the dispute has a sufficient connection with that Member
State.

(b)	The exequatur procedure (Articles 26-6 to 26-21a)

12.	At its meeting in June, the Justice and Home Affairs Council
approved a compromise solution which, if the United Kingdom takes part
in the Regulation, would enable the Regulation to apply to that country
even though it is not bound by the conflict-of-law rules contained in
the Hague Protocol of 23 November 2007 on the Law Applicable to
Maintenance Obligations.

13.	In this context, the Presidency proposes an exequatur procedure for
decisions given in the United Kingdom, set out in Articles 26-6
to 26-21a of the enacting terms of the Regulation contained in
Addendum 1 to this note.  That procedure is to a large extent identical
to the one applicable to decisions given in matters relating to
maintenance obligations under Regulation (EC) No 44/2001 (known as the
Brussels I Regulation).  It also includes significant improvements to
the procedure under the above Regulation, achieved in particular by
setting more precise and shorter deadlines.

(c)	Provisional enforceability (Article 26-21b)

14.	In order to ensure enforcement without delay, the Commission
proposal provided, in all cases, for enforceability by operation of law
of decisions relating to maintenance obligations given in a Member
State.  That provision was strongly opposed by certain Member States,
which felt that it amounted to unwarranted harmonisation of their
procedural law.

15.	With a view to striking a balance between the need to ensure swift
recovery of maintenance claims at Community level and compliance with
the relevant national legislation of the Member States, the Presidency
proposes, in Article 26-21b, an intermediate solution based on
Regulation (EC) No 2201/2003 (known as the Brussels IIa Regulation). 
That provision enables the court of origin to declare the decision
provisionally enforceable, notwithstanding any appeal, even if the
national law does not provide for enforceability by operation of law.

(d)	Data protection (Articles 44 to 47)

16.	The future Regulation provides for the establishment of Central
Authorities which will be responsible in particular for assisting
maintenance creditors in asserting their rights in another Member State.
 Within the framework of this assistance, the Presidency suggests
providing the Central Authorities and other competent authorities with
direct or indirect access to personal data.

17.	The Presidency has sought to reconcile the need to ensure
appropriate protection of personal data in accordance with Community law
with the need to enable creditors to assert their rights vis-à-vis
debtors.  With this in mind, it proposes Articles 44 to 47 as set out
in the main body of the Regulation contained in Annex 1 to this note.

(e)	Relationship with other Community instruments (Article 48)

18.	In Article 48, the Presidency suggests replacing the Brussels I
Regulation by the future Regulation in matters relating to maintenance
obligations.

19.	However, the Presidency also proposes that Regulation (EC)
No 805/2004 creating a European Enforcement Order should continue to
apply in matters relating to maintenance obligations because it has a
more limited scope than the future Regulation since it concerns only
uncontested claims.  Furthermore, Regulation (EC) No 805/2004 does not
provide for any exequatur procedure.

20.	The Presidency further proposes that Regulation (EC) No 1896/2006
creating a European order for payment procedure should continue to apply
in matters relating to maintenance obligations because that Regulation
establishes an autonomous procedural instrument which complements the
mechanisms set up by the future Regulation.



(f)	Relationship with bilateral and multilateral conventions and
agreements (Article 49)

21.	In line with the political compromise endorsed by the Justice and
Home Affairs Council in April 2007, which approved the principle
whereby Member States would be able to retain or conclude bilateral
agreements with third countries in matters relating to maintenance
obligations in accordance with a procedure to be determined, the
Presidency invites the Commission to submit a proposal in this respect
as soon as possible.

22.	Finland and Sweden made clear during the negotiations that they
attached considerable importance to being able to continue applying the
Nordic Convention of 23 March 1962 between Sweden, Denmark, Finland,
Iceland and Norway concerning the recovery of maintenance contributions,
given the simplified and accelerated procedures for enforcing decisions
relating to maintenance obligations provided for under that Convention
and its legal aid scheme, which is more favourable than that foreseen in
the future Regulation.  In order to meet the wishes of these two Member
States, the Presidency proposes, in Article 49(2), to provide for
continued application of that Convention.

(g)	The review clause (Article 51a)

23.	The compromise reached last June provided for the insertion of a
review clause in the draft Regulation, requesting the Commission to
submit to the European Parliament, the Council and the European Economic
and Social Committee a report on the application of the Regulation after
a certain number of years.

24.	The Presidency proposes that the clause should be inserted in
Article 51a and that the deadline for submission of the report should
be set at five years from the date on which the Regulation comes into
force.  It also suggests providing that the report should cover all
aspects of the application of the Regulation, including practical
experience in the field of administrative cooperation between Central
Authorities and the working of the exequatur procedure for decisions
given in the United Kingdom.



III.	CONCLUSION

25.	The Presidency invites Coreper to:

(a)	agree to the points of the overall compromise as set out in Part II
and the enacting terms of the Regulation as contained in Addendum 1 to
this note and

(b)	submit this overall compromise and the text of the enacting terms to
the Justice and Home Affairs Council for political agreement at its
meeting on 24 October 2008, with a view to final adoption of the
Regulation before the end of 2008.

				

	5199/06 JUSTCIV 2.

	P6_TA(2007)0620.

	See 8547/07 JUSTCIV 89 and 10045/08 JUSTCIV 114.

	The discussions took place against the backdrop of parallel
negotiations, within the framework of the Hague Conference on Private
International Law, on the adoption of a Convention and Protocol on
maintenance obligations.  The draft Regulation in its present form
includes certain aspects of the two instruments adopted in
November 2007; accordingly, the Regulation, Convention and Protocol
should, as far as possible, be implemented in parallel.  With this in
mind, Commission proposals regarding the convention on the one hand and
the protocol on the other are expected shortly.

	Subject to the technical adjustments which may be necessary further to
examination of the forms to be annexed to the Regulation.

	The recitals and forms are not included in the political agreement at
this stage.  They will be the subject of further technical examination
within the Committee on Civil Law Matters (Maintenance Obligations) in
October and November 2008.

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