European Model(s) of Protective Measures in Cross-Border Maintenance Debt Recovery Mirela Župan Professor 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 regulationSynergy with Hague 2007 Convention

Global level 0 United Nations 0 Convention on the Recovery Abroad of Maintenance, New York, 20 June Hague Conference on Private International Law 0 Convention 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; 0 Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. 0 Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance 0 Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations

European level 0 Brussels Convention of Regulation (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 0 Council 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 0 Regulation (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 obligations Regulation No. 4/2009

0 enacted in 2008, applicable since 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 0 provisional 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: 0 Article 31 of Regulation No. 44/2001 (ex Art. 24 BC) 0 Article 35 of the Regulation No. 1215/ Article 38 of the Insolvency Regulation 0 placing 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 0 Denilauler and Van Uden 0 EU Court attempts to reduce the risk of forum shopping 0 „reel connection link” required between the court issuing the protective measure and the measure itself 0 Van Uden 0 additional conditions for granting the measure 0 Mietz 0 additional 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/ aim is to secure sensitive family relations o Article 20 (as Art. 11 HC 1996) EU Court interpretation 0 Purrucker I - C 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 0 previous 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

0 when a decision must be recognised in accordance with the Regulation originating from a 0 state bound by Hague Protocol 0 state not bound with the Hague Protocol 0 applicant my avail himself of provisional, including protective, measures in accordance with the law of the Member State of enforcement 0 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

0 adopted in 2014, applicable from separate and standalone Europe-wide order – paralel to national preservation orders 0 applicable 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 procedure 0 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 element 0 creditor has to provide security in certain circumstances 0 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

0 EU plays active role also external relations of it’s Member States 0 EU is a contracting state of Hague 2007 Convention 0 Central authority can play a significant role in effectuating protective measures in cross border cases 0 Articles 6(2) i) and Article 7 of the Convention 0 Specific 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 0 CA can make rrequests for specific measures

Concluding remarks 0 European judicil area has significant effects to cross border provisional measures in: 0 european trial 0 international trial 0 Maintenance regulation has costs and benefits 0 EU Court rulings complement the legislative system 0 EAPO is alternative to national rules 0 one order can freeze numerous banc account accros EU 0 Synergy of EU and HCCH creates benefits of the debtors 0 Central Authority is logistical tool to protective measures