Verbatim report of proceedings

Wednesday, 12 December 2007 - Strasbourg

20. Maintenance obligations (debate)

  President. – The next item is the report by Genowefa Grabowska, on behalf of the Committee on Civil Liberties, Justice and Home Affairs, on the proposal for a Council regulation on international jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (COM(2005)0649 - C6-0079/2006 - 2005/0259(CNS)) (A6-0468/2007).

  Franco Frattini, Member of the Commission. − Madam President, the proposed instrument on maintenance obligations seeks to improve the precarious situation of people who depend on maintenance to meet their everyday needs.

In the European Union, where people are increasingly mobile, maintenance creditors – especially children – should not face obstacles to recover money due to them, particularly when the debtor, such as a parent, leaves or has moved abroad.

I would like to thank Ms Grabowska, as rapporteur, for the efforts she has made to give a voice to stakeholders such as non-governmental organisations assisting maintenance creditors during the very important public hearing on 11 September.

We generally welcome Ms Grabowska’s report, which supports the proposal in its essential elements.

I have just a few remarks on some proposed amendments. First of all, on the legal basis. We are of the opinion that the current instrument relates to family law. However, I understand Parliament’s concerns, given the existing legal context. That is why we have invited the Council, in a communication adopted at the same time as the proposed regulation, to decide – in accordance with Article 67(2) of the Treaty – that the present instrument be adopted according to the codecision procedure. That is my opinion, and I will continue to ask Council to act on this invitation.

Concerning the other amendments on the rules on applicable law. Last month, negotiations on a worldwide convention on maintenance obligations were finalised successfully at the Hague Conference on Private International Law.

Given the satisfactory results of the Convention and the accompanying protocol on applicable law, the Community and its Member States would like to adhere to those international rules. Consequently, the rules of the regulation and related amendments proposed should be revised in order to ensure consistency with the international rules.

The report proposes allowing the courts to apply their own law when cases come before them and when this would accelerate the resolution of the dispute. While we recognise the concern to speed up litigation, we believe that the proposed solution does not allow for sufficient legal certainty, and there is the danger that it would not serve the interest of maintenance creditors, who should be protected by application of the same substantive law, regardless of which court is considering the case.

Finally, Parliament is now voting on its report. An international legal context has become clear. I strongly hope this project will be resumed at full speed in 2008. I very much trust that the Council will give it the highest priority in the coming months.

  Genowefa Grabowska, rapporteur. − (PL) Madam President, let me begin by expressing my thanks. I want to thank the European Commission very much for its excellent cooperation at working level. I also thank the Committee on Civil Liberties, Justice and Home Affairs and the shadow rapporteurs, especially the Committee on Legal Affairs and Diana Wallis, who drafted its opinion, for their truly excellent cooperation. Mrs Wallis took on the heavy burden of convincing the Commission of the need for amendments to the legal basis.

I should perhaps start with the legal basis, given that the proposed resolution was referred to us under a procedure that is not acceptable to Parliament. We wanted the regulation to be adopted according to the codecision procedure, rather than the consultation procedure. I was therefore pleased to hear what the Commissioner told us, and I am aware of the Communication to the Council inviting it to give us that opportunity. I would add only one thing to what the Commissioner said.

I do not question the fact that the maintenance relationship arises out of family law. I would argue, however, that, taken as a whole, the maintenance relationship has a mixed character. The fact that it originates in family law does not mean that it remains within those bounds. It has consequences for the common market and the economic situation of both parties, i.e. that of the maintenance creditor and that of the debtor. We are accordingly entitled to extract the maintenance relationship from its origin in family law and associate the execution of maintenance obligations, not with family law, but with areas in which this Parliament holds itself competent, namely the common market, family care and human rights. In which case, it seems to me, there should be no difficulty in changing the procedure.

I therefore consider that this proposal warrants not only Council’s attention but acceptance by Council. In preparing this regulation we held hearings that were, in truth, one uninterrupted lament. Women, mainly, told us of the difficult situation in which they find themselves when they try to enforce maintenance payments for children whose other parent lives in a different country and appears not very interested in raising his child or paying for its upbringing.

Many different tricks are employed. I shall not mention them all but confine myself to one example. It is enough to change a single letter of ones surname in order to disappear in Europe almost without trace, and the maintenance obligation vanishes along with the debtor. By means of this regulation we seek to ensure that no maintenance debtor in Europe feels safe in thinking that by leaving the country in which a child remains for whom maintenance is not paid, by moving away into the open European Union in which internal borders have been lifted – especially now when the new Member States will be joining the Schengen area in a few days’ time – he can take advantage of a situation that works in favour of a person who does not take responsibility for his family.

Let me mention the two measures in the resolution that seem to me the most important and constitute an innovation. A maintenance order issued in the state in which the creditor normally resides will not have to be confirmed in the state in which the maintenance debtor is living. The regulation thus proposes abolishment of the ‘exequatur’ procedure. I realise this is something new, but if we want to ensure effective enforcement of maintenance obligations we must take that step. If we keep ‘exequatur’, the whole attempt to achieve effective enforcement falls by the wayside.

I realise we shall be respecting all the provisions adopted in the framework of the Hague Convention and Conference, but the international system grinds exceedingly slow, and the ratification of agreements in the sphere of private international law can take years. The European Union must go forward and ensure that children are provided for when their fathers or mothers forget about them. This regulation must therefore be implemented quickly for the good of the children. It not only takes care of the children but also protects the creditor. Therefore, thanking the Portuguese presidency for the work it put into preparation of the text, I place the matter in the hands of the Slovenian presidency in full confidence that it will see the text through to conclusion and that we shall obtain a good regulation.

  Diana Wallis, Draftsman of the opinion of the Committee on Legal Affairs. − Madam President, I would like to thank the Commissioner for his very positive statement. I should also like to thank Ms Grabowska for her wonderful cooperation on this matter.

This is one of those proposals that could make Europe a reality for those we serve. It could add practical value at difficult times in their lives. I do not know how many times, as an elected MEP, I have been contacted by constituents who are having difficulties getting maintenance from somebody in another Member State. All too often, I have been unable to give a practical and positive answer.

With this regulation, I hope that in most circumstances we would be able to do much better. The proposal potentially allows the EU to go much further than states can through the Hague Conference process, which has already been mentioned. We should indeed be able to go further. After all, we have encouraged our citizens to move freely across old national borders within the EU, and should be able to provide an answer, in the form of a good, simple, functioning justice system, when they hit rough times in their marriages or partnerships breaking down. Above all, we should be able to offer help to children suffering the financial consequences of marriage breakdown. This proposal would give us a simplified one-step process, instead of the current nightmare of applying in one court and then having to go through more or less the same process of enforcement in a foreign court. That is too much for people at vulnerable and desperate moments in their lives.

The Legal Affairs Committee has been happy to endorse most of this proposal, whilst trying to make some technical improvements. In this respect I am very grateful to my colleague, Mr Casini. However, like the rapporteur, we cannot accept the choice of legal base. It should have been codecision, not consultation. I believe the Member States have been entirely unreasonable, both in terms of the content of the legislation, and as regards the implications for our citizens. I hope they will respond to the Commissioner’s appeal.

Speaking on behalf of my Group, we do not want to see the effectiveness of this one-step system undermined. We must, of course, respect the rights of the defence – the judgement debtor – but this should apply to the originating court. We should not allow the re-opening of the case in the enforcing court, or we will destroy the very benefits we are seeking to deliver. We therefore want to see deletion of Article 33(a), and have grave doubts about amendment 61, which still leaves the door open too wide.

Finally, I want to make some comments as a UK Member of this Parliament. The UK opt-out or failure to opt in to this instrument is bad news for many EU nationals from other Member States now living in the UK, and is also bad news for many Brits whose partners move to another Member State. Indeed, there are all sorts of permutations where the opt-out will create chaos and confusion. People will be second-class citizens in respect of the justice system available to them.

However, what I most regret is the failure of the British Government to appreciate the untenable position of British MEPs in these issues. Should we actually be working on, speaking on – and, more importantly, voting on –proposals on things that, as they currently stand, will have no application to those who elected us? Others are beginning to question the legitimacy of our position. These opt-outs are democratically untenable and destructive to the coherence of the EU civil justice system. Pick-and-mix, opt-in and opt-out merely hits those who are vulnerable and in most need of the law’s protection.

IN THE CHAIR: MR BIELAN
Vice-President

  Panayiotis Demetriou, on behalf of the PPE-DE Group. – (EL) Mr President, first of all I would like to congratulate the rapporteur, Mrs Grabowska, on her initiative in raising this issue and on the very positive view she has expressed this evening.

Fellow Members, the round of consultations of the Hague Conference, which began seven years ago, is drawing to a close. The question arises: what progress has been made on the issue of mutual recognition and enforcement of judgments in international private law? Where is the declaration that the principle of mutual recognition and enforcement of judgments is the cornerstone of judicial and police cooperation in the creation of an area of freedom, security and justice? The answer is that no great progress has been made in this direction. The 2004 Hague Programme has not been promoted to the degree that was needed, despite the efforts and initiatives of the Commissioner responsible, Mr Frattini.

Unfortunately, the misuse of appeals to national sovereignty by some Member States is a hindrance to the harmonisation of the law, not only on substantive matters, but also on questions of procedure. These general observations do not, of course, negate the value and significance of the proposal we are discussing. On the contrary, they underline the need to adopt further proposals for Council regulations, covering the whole field of family law: divorce, separation, maintenance and property matters. Council Regulation (EC) No 2201/2003 on recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility is in need of radical reform and modernisation. This need is indeed being addressed to a large extent with the proposal for the amending regulation, but unfortunately only on the question of maintenance. The differences in the substantive law of the Member States, under the vital heading of justice, remain. There is still a long way to go. Even so, where there is scope for convergence, this harmonisation of the law should be pushed forward.

The amendments proposed by the European Parliament fill many of the gaps in the proposal and improve its content. Above all, they overcome many obstacles which hinder the enforcement of maintenance judgments anywhere in the European Union, and they limit the debtor parent’s or spouse’s scope for evading justice when he or she has moved from one EU Member State to another. Precisely this point is addressed by the amendment which I have tabled to Article 33a, in which I attempt, firstly, not to leave unlimited scope for non-enforcement of an order on grounds of a change of circumstances and, secondly, to allow latitude for dealing with the situation in this way when there are serious, really serious, pertinent circumstances which give the court precisely this right to revise its opinion.

  Andrzej Jan Szejna, on behalf of the PSE Group. – (PL) Mr President, I would first like to thank the rapporteur, Genowefa Grabowska, most warmly for the work she has put into the regulation before us and her report. The splendid result does not surprise me, as Professor Grabowska is one of Poland’s leading experts on European law.

Bearing in mind that the number of divorces and separations in the European Union is rising, the problem of legal impediments to the recognition and enforcement of decisions on maintenance obligations is increasingly important. Furthermore, given the degree of integration of the Member States and the still large number of binding legal sources within the European Union, an advanced legal system is essential.

There is no harmonised system in force in this field at European Union level at the present time. I am therefore in favour of the regulation, which contains highly pertinent proposals concerning the problems we are discussing. It should be noted that it is the outcome of a long-term programme of work, the Hague Programme for strengthening freedom, security and justice in the European Union. I agree that effective enforcement of maintenance obligations will improve the living conditions and education of many children who are first-line maintenance creditors. That is a very important matter for European socialists.

The proposed regulation not only tackles certain problems of modern society: it can also help improve the operation of the internal market, specifically by removing barriers to the free movement of persons who could suffer as a result of differences in Member States’ legislation on the execution of maintenance obligations.

For the good of all citizens of the European Union, we must strive to achieve rapid and, if possible, cost-free execution of maintenance payments. At present, institutions must sometimes resort to drastic measures to enforce the payment of maintenance, while creditors often live in reduced circumstances.

I also support the idea that court decisions should have the same force as they have in the Member State in which they were issued, without any additional formalities.

Finally, I would stress the need for greater involvement of the European Parliament in the adoption of decisions on matters of such importance for the future functioning of the European Union and the internal market.

  Carlo Casini (PPE-DE). – (IT) Mr President, ladies and gentlemen, the purpose of the report we are examining is to eliminate most of the obstacles to the recovery of maintenance in Europe, making it possible to establish a legal context in keeping with the legitimate expectations of maintenance creditors.

The most significant starting point is that in the vast majority of cases the maintenance creditor is the weaker party and therefore needs very vigorous protection, and it is evident that the main problem lies in the actual circumstances of maintenance debtors. However, it is advisable to do at least what is possible, i.e. to eliminate any unnecessary red tape and to make the applicable law certain, to establish a preference for the law of the place of residence of the creditor and to give immediate effect to the legal decision under which maintenance has to be paid, even in countries other than the country in which the decision has been given.

The Committee on Legal Affairs, called upon to give an opinion under the enhanced cooperation procedure on jurisdiction, applicable law and enforcement of decisions in matters relating to maintenance obligations, has played an important role in the drafting of the text, achieving a major compromise agreement between the main political groups, for which I should like publicly to thank Mrs Wallis. The main aims of the amendments tabled by the Committee on Legal Affairs are to draw up a clear definition of maintenance obligations, extend the scope of application, protect the most vulnerable parties involved and simplify the proposed text.

It has been necessary to draw up an unambiguous definition of maintenance obligations and to include in the scope of the regulation all orders relating to the payment of lump sums. Particular attention has been paid – as I have said – to the most vulnerable parties and, here, the text of the regulation needs to be further simplified. In conclusion, as my speaking time has come to a end, I am sure that the PPE-DE Group will give this decision its full support.

  Tadeusz Zwiefka (PPE-DE). – (PL) Mr President, the regrettable increase in marital breakdown, coupled with the growing mobility of people living in the European Union, is inevitably leading to an increase in the number of cross-border conflicts concerning maintenance claims. At the present time, in order to enforce a claim against a maintenance debtor living in another Member State it is necessary to apply to the judiciary of the state in which the decision is to be executed. Unfortunately, that does not always work, so there is clearly a real need to lay down detailed rules on jurisdiction in regard to maintenance claims.

The purpose of the draft resolution is to reduce the formal requirements for a court decision to be delivered in any Member State and to ensure its effective execution. Upon entry into force, the new regulation will enable an entitled person to obtain a binding enforcement order anywhere in the European Union. It will also simplify and unify the enforcement system. While welcoming the measures adopted by the Hague Conference, I fully agree with the rapporteur that the regulations applying in this matter in the European Union must be more progressive and more rapidly implemented.

The increasing mobility of EU citizens is leading to any increase in the number of marriages in which spouses are of different nationalities and live in different states, or live in a Member State of which neither is a national. Where an international couple decide to divorce, they may therefore invoke different laws. The broad subjective and objective scope of the regulation is justified by the frighteningly low rate of obtention of maintenance payments in certain EU Member States. In my own country, Poland, for example, the figure is just 10%.

The regulation will also enable the mother of an illegitimate child to claim from the child’s father payment of the costs associated with pregnancy and childbirth, as well as the costs of her upkeep during childbirth. At present such a claim is not recognised in many Member States as a claim for maintenance, which makes it considerably more difficult to pursue.

Before my country joined the European Union, more than one thousand claims for maintenance from abroad were lodged in the courts every year. As a result of the opening of borders, all forecasts predict a drastic rise in the number of such claims, both in Poland and in other countries. The opening of borders and labour markets may lead some fathers to run away from their maintenance obligations, and it is mainly the children who will suffer. This we cannot accept.

  Franco Frattini, Member of the Commission. − (IT) Mr President, ladies and gentlemen, I shall be very brief. I would like to thank all those who have spoken, the rapporteur and Members who have taken part in this work. In forthcoming months, we shall, in my view, have three objectives before us and I hope that the Slovenian Presidency will be able to take them forward successfully.

First: to convince the Council that if we feel it is useful to amend a legal base under Article 67 of the Treaty, we do so to give a better democratic basis to an initiative which objectively protects vulnerable groups of people, especially children following the breakdown of the family unit.

The second objective is to ensure that creditors receive the same protection irrespective of the place at which the matter has been brought before the courts: it would be very odd if the so-called lex fori criterion led to a substantial variation in the protection afforded to creditors. Another essential objective is therefore to try to harmonise the rules.

The third objective, where, in my view, work is needed, is that of actual enforcement: in too many cases we affirm the principle of protection of creditors in family matters, but then we do not ensure that it is enforced, or we allow the substance of the case to be reopened when a payment order should be made. That does not work in the case of maintenance; were it the case, the measure would be deprived of any meaning.

We have drawn up fairly innovative proposals: temporarily freezing a proportion of the debtor’s bank account if the debtor does not want to pay, or a mandatory periodic payment order against the debtor’s assets for the sum that the debtor should pay. As you know, there has been dissent and opposition from the majority of the Member States in the Council because that is what really makes a difference for a regulation: either the measure can be genuinely enforced or it is pointless to continue to affirm the importance of protecting children or separated spouses who are maintenance creditors!

We shall have to work on these three issues in the coming months and, clearly, in this case, more than in others, the Commission and Parliament are in agreement and we shall have to persuade the Council that this is the right road to take.

  President. − The debate is closed.

The vote will take place on Thursday, 13 December 2007.

Written statements (Rule 142)

  Marian-Jean Marinescu (PPE-DE), in writing. – (RO) For the moment, there is no single European system to acknowledge and enforce the legal obligation to grant maintenance abroad. The Community provisions in this field are insufficient instruments for pursuing debtors who try to avoid their obligations to pay maintenance.

According to the present regulation, any judgment regarding maintenance given in a Member State must be rapidly and correctly enforced in any other Member State.

Thus has ensured the simplification of citizens’ lives, namely the recovery of child maintenance from the parent or other debtors when such persons reside in a different country to the child, implementation of one of the European fundamental rights, the right to private and family life and child protection, homogenization and simplification of the European legal norms on the entire EU territory and construction of the European space of freedom, security, justice and facilitation of internal market operation.

I think that the courts notified should check the independent status and competence of legal consultancies and take into consideration the situation of the parties during the proceedings. The creditor of the maintenance obligation should benefit from the legal provisions in the country of residence, litigations in this field should be solved less expensively and searching for the most favourable jurisdiction should be avoided.