Op-Ed: “Application of the Maintenance and Jurisdiction Regulation: the Court’s ruling in TKF” by Daniel Müller and Maja Menard
Application of the Maintenance and Jurisdiction Regulation: A Unified, Coherent Set of Rules on Jurisdiction, Applicable Law, Recognition and Enforcement of Judgments
At a first glance, the Court of Justice’s judgment on the preliminary ruling request submitted by the Court of Appeal in Northern Ireland in TKF (C-729/19) seems to be an example of extraordinary legal formalism to the detriment of effective and efficient protection of European Union citizens and their rights. By the questions submitted, the referring court inquired in substance whether a judgment for maintenance rendered by a national court before the State became a member of the European Union is entitled to recognition and enforcement in another Member State under the very liberal rules and provisions of the Maintenance and Jurisdiction Regulation 4/2009. The Court answered negatively and, indeed, quite categorically, finding that decisions in matters relating to maintenance obligations rendered in a State before its accession to the EU cannot benefit from the recognition and enforcement provisions of the Maintenance and Jurisdiction Regulation 4/2009 (Judgment, operative paragraph 2) – following in substance the Opinion of Advocate General Hogan.
The Court’s position is not grounded in a mere literal interpretation of the provisions of the Maintenance and Jurisdiction Regulation 4/2009. Relying on the definition of the term ‘decision’ in Article 2(1)(1) of the Regulation, which refers to a ‘decision in matters relating to maintenance obligations given by a court of a Member State’ (emphasis added), Advocate General Hogan had pointed out in his Opinion that ‘Regulation No 4/2009 proceeds from the premiss that the judgment must have been delivered by a court of a Member State’ (paragraph 24). The Court however noted that the wording of the Regulation alone does not necessarily imply that a decision must have been rendered by a court of a State that, at the time of the rendering of the decision, was an EU Member State (Judgment, paragraph 43).
In interpreting the terms of the Maintenance and Jurisdiction Regulation 4/2009, the Court seems to have been mindful of the objectives of the Regulation (Judgment, paragraph 40 with further references) and the link between the rules on jurisdiction, including the guarantees provided to defending parties, and on applicable law, on the one hand, and the simplified, or even automatic, procedure for the recognition and enforcement of decisions rendered under this unified regime, on the other hand. This close relationship between simplified enforcement and recognition procedures for decisions rendered under a unified regime of jurisdictional rules has previously been affirmed by the Court in relation to the Civil and Commercial Judgments Regulation 44/2001 (see, for example, Wolf Naturprodukte, C‑514/10, paragraphs 24-27; Opinion 1/03, paragraphs 163-165). Therefore, the unified and coherent system could only operate as a block: decisions must necessarily have been rendered in full respect of the jurisdictional and applicable law rules in order to benefit from the specific enforcement and recognition rules. This excludes all decisions rendered in a State before it became a member of the EU and thus bound by the relevant regulation. This is not a question of form, timing, or entry into force; it is a question of the unity of the legal regime.
The transitional provisions of the Maintenance and Jurisdiction Regulation 4/2009 do not entirely reflect the Court’s case law. Article 75(1) simply provides that the Regulation applies only to ‘proceedings instituted, to court settlements approved or concluded, and to authentic instruments established after its date of application’, that is, after 18 June 2011. It does not, as such, address the issue of proceedings instituted after the date of application of the Regulation and in a State that was yet to become a member of the EU (like, for instance, Croatia between 2011 and 2013). Under the principles established by the Court, such decisions must clearly be excluded from the benefits of the simplified recognition and enforcement rules, although they actually satisfy the conditions set out in the wording of Article 75(1).
Moreover, Articles 75(2) (a) and (b) of the Maintenance and Jurisdiction Regulation 4/2009 provide for specific exceptions to the general rule and extend the application of some recognition and enforcement rules of the Regulation to decisions rendered before its entry into application and decisions rendered after its entry into application following proceedings having begun before it. Yet again, the Court did not engage fully with the respective wording of these two exceptions in its judgment. Referring to recital 44 of Regulation 4/2009, it stressed that both exceptions are meant to ensure the transition between the Civil and Commercial Judgments Regulation 44/2001 and the Maintenance and Jurisdiction Regulation 4/2009, the latter replacing the former as the new lex specialis (Judgment, paragraph 32; FX (Opposing enforcement of a maintenance claim), C‑41/19, paragraph 33). Consequently, the Court considered that the fact that the Civil and Commercial Judgments Regulation 44/2001 was not applicable to the enforcement of a decision rendered before a State became a member of the EU, the same holds true in respect of the Maintenance and Jurisdiction Regulation 4/2009 (Judgment, paragraphs 50-52). Indeed, the Court seems to have taken the position that only those decisions in maintenance matters that fell or would have fallen under the recognition and enforcement regime of the Civil and Commercial Judgments Regulation 44/2001 would fall under the transitional provision of the new lex specialis. Despite the fact that the wording of these provisions does not necessarily lead to this conclusion, such a solution makes sense. In fact, the recognition and enforcement rules applicable to maintenance decisions which fall under Article 75(2) of the Maintenance and Jurisdiction Regulation 4/2009 (Articles 23 to 43) are largely identical to those contained in the Civil and Commercial Judgments Regulation 44/2001.
The Court thus makes an essentially coherent conclusion on the applicability of the Maintenance and Jurisdiction Regulation 4/2009, in the sense that the possibility of facilitated recognition is admitted only within the limited framework of a coherent set of rules in different jurisdictions.
Even if the Court’s judgment is certainly one of the last preliminary references from a court in the United Kingdom, the judgment is not less binding on the referring court, in spite of Brexit (Withdrawal Agreement, Article 89(1)). The more general question of the future recognition and enforceability of European Union’s and its Member States’ judgments in the United Kingdom, and of the recognition and enforceability in the EU and its Member States of judgments rendered in the UK, is still on the table, with the underlying legal uncertainty. In accordance with Title VI of the Withdrawal Agreement, the relevant EU law instruments governing applicable law, jurisdiction, recognition and enforcement of judgments, including the Maintenance and Jurisdiction Regulation 4/2009, remain applicable to the relationship between UK and EU in proceedings commenced prior to the end of the transition period.
However, the EU-UK Trade and Cooperation Agreement remains silent on these questions and the ensuing legal uncertainty is palpable. Concerning the issue of maintenance decisions, the UK submitted its instrument of ratification of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance in late September 2020 in order to ensure the continuous application of that Convention after Brexit. It has taken similar steps for other private international law instruments. But, ultimately, the recognition and enforceability of judgments between the EU and UK will again have become a matter of domestic – private international law – rules of the EU Member States (under EU law where applicable) and the UK, respectively. Although the questions submitted to the Court in TKF did not specifically concern these new realities, the Court could have seized the opportunity to provide some guidance for the UK, the Member States and their citizens.
Daniel Müller is an independent practitioner and a Member of the Paris Bar. He holds a PhD in international law from the Université Paris Nanterre and the Humboldt-Universität zu Berlin.
Maja Menard is a Member of the Paris Bar and the Slovenian Bar. She is Managing Partner of a leading law firm in Slovenia. She holds a PhD in international law from the Université Paris Nanterre.