A German court granted the husband and wife’s divorce and made an order for the maintenance of the couple’s children. Since the divorce, the wife and children continued to live in Germany, whereas the husband lived and worked in the United Kingdom. After he had refused to pay the maintenance under the order, the wife applied to the High Court of Justice (England and Wales), Family Division, on the basis of Council Regulation (EC) No 4/2009, for enforcement of the maintenance order. Chapter IV of Regulation No 4/2009, entitled “Recognition, Enforceability and Enforcement of Decisions”, included article 41 which provided that the procedure for the enforcement of decisions given in another member state was governed by the law of the member state of enforcement (in this case the United Kingdom). A decision given in a member state which was enforceable in the member state of enforcement was to be enforced there under the same conditions as a decision given in that state. Articles 49 to 63 of Regulation No 4/2009 were in Chapter VII, headed “Co-operation between Central Authorities”. Under United Kingdom domestic law, namely the Civil Jurisdictions and Judgments (Maintenance) Regulations 2011, the maintenance creditor had to apply to the Family Court, through the Lord Chancellor, who was the “central authority” designated for England and Wales within the meaning of article 49 of Regulation No 4/2009, and who then allocated the task of enforcement to the Reciprocal Enforcement of Maintenance Orders Unit (“REMO”). In the present case, the High Court had to determine, as a preliminary issue, whether an application for enforcement of a maintenance order could be issued directly by the Family Court, or whether the application had, in all cases, to be first lodged with the Lord Chancellor, for forward transmission to the Family Court through the REMO. The High Court, which considered that there were inconsistencies in the approach adopted by the United Kingdom courts, referred to the Court of Justice of the European Union for a preliminary ruling the questions whether: (i) Chapter IV of Regulation No 4/2009 meant that a maintenance creditor who had obtained an order in one member state and wished to enforce it in another member state could apply directly to the competent authority of the latter member state, such as a specialised court; and (ii) if so, whether there was an obligation to provide a procedure or mechanism whereby it was possible to apply directly to the competent authority of the member state of enforcement.
Held, (1) that nothing in Chapter IV of Council Regulation (EC) No 4/2009 provided that a special procedure, in addition to the procedures applicable to purely domestic claims, had to be followed, or, in particular, that recourse had to be had to the central authorities of the member states, provision for which was made in Chapter VII. A person had a right, but was not obliged, to apply to the central authorities for assistance pursuant to the provisions in Chapter VII and that right would be exercised only if the maintenance creditor wished to avail herself of it. Regulation No 4/2009 provided two alternative methods of applying to the courts with jurisdiction, one direct, pursuant to the provisions in Chapter IV, and the other through the central authorities, pursuant to the provisions in Chapter VII. The obligation imposed on a maintenance creditor by national provisions such as those in issue to submit an application through the central authority of the requested member state, even though that person wished to apply directly to the competent authorities on the basis of Chapter IV, which took more time, was contrary to article 41(1) of Regulation No 4/2009. Accordingly, Chapter IV of Regulation No 4/2009, in particular article 41(1) thereof, meant that a maintenance creditor who had obtained an order in one member state and wished to enforce it in another member state could apply directly to the competent authority of the latter member state, such as a specialised court, and could not be required to submit the application to that court through the central authority of the member state of enforcement (judgment, paras 37, 39, 40, 41, 43, 44, operative part, para 1).
(2) That the direct application of a European Union measure, such as a Regulation, meant that its entry into force and its application were independent of any measure of reception into national law. In the present case, Regulation No 4/2009, which was applicable from 18 June 2011, provided for its deferred application from the date of its entry into force, namely 20 January 2009. Between those two dates, it fell to the member states, where necessary, to amend their domestic legislation by adapting their procedural rules so as to avoid any contravention of the Regulation and, in particular, to enable maintenance creditors, such as the wife, to exercise their right to apply directly to the competent authority of the member state of enforcement. Accordingly, member states had to give full effect to the right laid down in article 41(1) of Regulation No 4/2009 by amending, where appropriate, their procedural rules. In any event, it was for the national court to apply article 41(1), if necessary refusing to apply any conflicting national provision and, as a consequence, to allow a maintenance creditor to apply directly to the member state of enforcement, even if national law did not provide for such an application (judgment, paras 47–49, 51, operative part, para 2).
Timothy Scott QC and Edward Bennett (instructed by Turpin & Miller LLP) for the wife.
G Palmieri, agent, and S Fiorentino for the Italian Government.
H Leppo, agent, for the Finnish Government.
M Wilderspin, agent, for the European Commission.