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

Published date12 March 2015
Subject Mattergiustizia e affari interni,justice et affaires intérieures,justicia y asuntos de interior
Official Gazette PublicationGazzetta ufficiale dell’Unione europea, L 7, 10 gennaio 2009,Journal officiel de l’Union européenne, L 7, 10 janvier 2009,Diario Oficial de la Unión Europea, L 7, 10 de enero de 2009
Consolidated TEXT: 32009R0004 — EN — 31.12.2018

02009R0004 — EN — 31.12.2018 — 004.001


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►B 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 (OJ L 007 10.1.2009, p. 1)

Amended by:

Official Journal
No page date
►M1 COMMISSION IMPLEMENTING REGULATION (EU) No 1142/2011 of 10 November 2011 L 293 24 11.11.2011
M2 COUNCIL REGULATION (EU) No 517/2013 of 13 May 2013 L 158 1 10.6.2013
►M3 COMMISSION IMPLEMENTING REGULATION (EU) 2015/228 of 17 February 2015 L 49 1 20.2.2015
►M4 COMMISSION IMPLEMENTING REGULATION (EU) 2018/1937 of 10 December 2018 L 314 36 11.12.2018


Corrected by:

►C1 Corrigendum, OJ L 131, 18.5.2011, p. 26 (4/2009)
►C2 Corrigendum, OJ L 008, 12.1.2013, p. 19 (4/2009)
►C3 Corrigendum, OJ L 189, 17.7.2015, p. 42 (2015/228)




▼B

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



CHAPTER I

SCOPE AND DEFINITIONS

Article 1

Scope of application

1. This Regulation shall apply to maintenance obligations arising from a family relationship, parentage, marriage or affinity.

2. In this Regulation, the term ‘Member State’ shall mean Member States to which this Regulation applies.

Article 2

Definitions

1. For the purposes of this Regulation:

1. the term ‘decision’ shall mean a decision in matters relating to maintenance obligations given by a court of a Member State, whatever the decision may be called, including a decree, order, judgment or writ of execution, as well as a decision by an officer of the court determining the costs or expenses. For the purposes of Chapters VII and VIII, the term ‘decision’ shall also mean a decision in matters relating to maintenance obligations given in a third State;

2. the term ‘court settlement’ shall mean a settlement in matters relating to maintenance obligations which has been approved by a court or concluded before a court in the course of proceedings;

3. the term ‘authentic instrument’ shall mean:

(a) a document in matters relating to maintenance obligations which has been formally drawn up or registered as an authentic instrument in the Member State of origin and the authenticity of which:

(i) relates to the signature and the content of the instrument, and

(ii) has been established by a public authority or other authority empowered for that purpose; or,

(b) an arrangement relating to maintenance obligations concluded with administrative authorities of the Member State of origin or authenticated by them;

4. the term ‘Member State of origin’ shall mean the Member State in which, as the case may be, the decision has been given, the court settlement has been approved or concluded, or the authentic instrument has been established;

5. the term ‘Member State of enforcement’ shall mean the Member State in which the enforcement of the decision, the court settlement or the authentic instrument is sought;

6. the term ‘requesting Member State’ shall mean the Member State whose Central Authority transmits an application pursuant to Chapter VII;

7. the term ‘requested Member State’ shall mean the Member State whose Central Authority receives an application pursuant to Chapter VII;

8. the term ‘2007 Hague Convention Contracting State’ shall mean a State which is a contracting party to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and other Forms of Family Maintenance (hereinafter referred to as the 2007 Hague Convention) to the extent that the said Convention applies between the Community and that State;

9. the term ‘court of origin’ shall mean the court which has given the decision to be enforced;

10. the term ‘creditor’ shall mean any individual to whom maintenance is owed or is alleged to be owed;

11. the term ‘debtor’ shall mean any individual who owes or who is alleged to owe maintenance.

2. For the purposes of this Regulation, the term ‘court’ shall include administrative authorities of the Member States with competence in matters relating to maintenance obligations provided that such authorities offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State where they are established:

(i) may be made the subject of an appeal to or review by a judicial authority; and

(ii) have a similar force and effect as a decision of a judicial authority on the same matter.

These administrative authorities shall be listed in Annex X. That Annex shall be established and amended in accordance with the management procedure referred to in Article 73(2) at the request of the Member State in which the administrative authority concerned is established.

3. For the purposes of Articles 3, 4 and 6, the concept of ‘domicile’ shall replace that of ‘nationality’ in those Member States which use this concept as a connecting factor in family matters.

For the purposes of Article 6, parties which have their ‘domicile’ in different territorial units of the same Member State shall be deemed to have their common ‘domicile’ in that Member State.



CHAPTER II

JURISDICTION

Article 3

General provisions

In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

(a) the court for the place where the defendant is habitually resident, or

(b) the court for the place where the creditor is habitually resident, or

(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or

(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.

Article 4

Choice of court

1. The parties may agree that the following court or courts of a Member State shall have jurisdiction to settle any disputes in matters relating to a maintenance obligation which have arisen or may arise between them:

(a) a court or the courts of a Member State in which one of the parties is habitually resident;

(b) a court or the courts of a Member State of which one of the parties has the nationality;

(c) in the case of maintenance obligations between spouses or former spouses:

(i) the court which has jurisdiction to settle their dispute in matrimonial matters; or

(ii) a court or the courts of the Member State which was the Member State of the spouses’ last common habitual residence for a period of at least one year.

The conditions referred to in points (a), (b) or (c) have to be met at the time the choice of court agreement is concluded or at the time the court is seised.

The jurisdiction conferred by agreement shall be exclusive unless the parties have agreed otherwise.

2. A choice of court agreement shall be in writing. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.

3. This Article shall not apply to a dispute relating to a maintenance obligation towards a child under the age of 18.

4. If the parties have agreed to attribute exclusive jurisdiction to a court or courts of a State party to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( 1 ), signed on 30 October 2007 in Lugano (hereinafter referred to as the Lugano Convention), where that State is not a Member State, the said Convention shall apply except in the case of the disputes referred to in paragraph 3.

Article 5

Jurisdiction based on the appearance of the defendant

Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction.

Article 6

Subsidiary jurisdiction

Where no court of a Member State has jurisdiction pursuant to Articles 3, 4 and 5 and no court of a State party to the Lugano Convention which is not a Member State has jurisdiction pursuant to the provisions of that Convention, the courts of the Member State of the common nationality of the parties shall have jurisdiction.

Article 7

Forum necessitatis

Where no court of a Member State has jurisdiction pursuant to Articles 3, 4, 5 and 6, the courts of a Member State may, on an exceptional basis, hear the case if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected.

The dispute must have a sufficient connection with the Member State of the court seised.

Article 8

Limit on proceedings

1. Where a decision is given in a Member State or a 2007 Hague Convention Contracting State where the creditor is habitually resident, proceedings to modify the decision or to have a new decision given cannot be brought by the debtor in any other Member State as long as the creditor...

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