Christophe Bohez v Ingrid Wiertz.

• Jurisdiction: European Union
• Celex Number: 62014CC0004
• ECLI: ECLI:EU:C:2015:233
• Date: 16 April 2015
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-4/14

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 16 April 2015 (1 )

Case C‑4/14

Christophe Bohez

v

Ingrid Wiertz

(Request for a preliminary ruling from the Korkein oikeus (Finland))

‛Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Jurisdiction and the enforcement of judgments in civil and commercial matters — Excluded matters — Family law — Regulation (EC) No 2201/2003 — Jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility — Judgment on rights of access coupled with a periodic penalty payment — Enforcement of the penalty payment’

I – Introduction

1. The Korkein oikeus (Supreme Court of Finland) asks the Court, first, about the application of Regulation (EC) No 44/2001 (2) to the enforcement, in one Member State, of a judicial decision delivered in another Member State, where that decision imposes a penalty payment to ensure compliance with rights of access and, second, about the conditions for enforcement of the penalty payment.

2. Viewed from a global perspective, this case highlights how difficult it is to identify which body of rules applies to penalty payments in the system for the recognition and enforcement of judicial decisions within the European Union. This difficulty is compounded in the specific case where the right safeguarded by the penalty payment is a right of parental access. This is the context in which the Court is asked to reply to the questions referred for a preliminary ruling by the national court.

II – Legal framework

A – EU law

1. Regulation No 44/2001

3. Article 1(1) and (2)(a) of Regulation No 44/2001, which concerns the scope of the regulation, provides: ‘1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters. 2. The Regulation shall not apply to: (a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession.’

4. Articles 45(2) and 49 of Regulation No 44/2001 form part of Chapter III entitled ‘Recognition and enforcement’.

5. Article 45(2) of the regulation provides: ‘2. Under no circumstances may the foreign judgment be reviewed as to its substance.’

6. Article 49 of the regulation is worded as follows: ‘A foreign judgment which orders a periodic payment by way of a penalty shall be enforceable in the Member State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the Member State of origin.’

2. Regulation (EC) No 2201/2003

7. Article 1 of Regulation No 2201/2003 (3) defines the scope of the regulation as follows: ‘1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: … (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. 2. The matters referred to in paragraph 1(b) may, in particular, deal with: (a) rights of custody and rights of access; …’

8. Article 26 of the regulation states: ‘Under no circumstances may a judgment be reviewed as to its substance.’

9. As regards the enforceability of judgments relating to rights of access, Article 28(1) of Regulation No 2201/2003 provides: ‘A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.’

10. Some judgments relating to rights of access may be subject to special rules. The first subparagraph of Article 41(1) of the regulation provides: ‘The rights of access … granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.’

11. Article 47 of the regulation provides: ‘1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) … shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. …’

B – Belgian law

12. Penalty payments are governed by Articles 1385 bis to 1385 nonies of the code judiciare (‘the Judicial Code’).

13. Article 1385 bis of the Judicial Code provides: ‘On the application of one of the parties, the court may order the other party to pay a sum of money, known as a penalty payment, if the principal obligation laid down in the judgment has not been performed, without prejudice to damages, where appropriate. …’

14. Article 1385 ter of the Judicial Code is worded as follows: ‘The court may set the penalty payment at a fixed amount or at an amount determined by unit of time or by breach. In the last two cases, the court may also set an amount above which the order to pay the penalty payment shall cease to have effect.’

15. Article 1385 quater of the Judicial Code provides: ‘The whole amount of the accrued penalty payment is payable to the party who obtained the order. That party may pursue recovery of the penalty payment on the basis of the order imposing it. …’

16. Article 1385 quinquies of the Judicial Code is worded as follows: ‘The court that imposed the penalty payment may also cancel it, suspend its accrual for a stipulated period or reduce its amount, on application by the party ordered to pay the penalty, if he is permanently or temporarily entirely or partially unable to perform the principal obligation. The court may not cancel or reduce the penalty payment if it has accrued before the circumstances causing the inability arise.’

17. Since the enforceable instrument permitting recovery of the penalty payment is the judicial decision imposing that penalty (Article 1385 quater of the Judicial Code), the beneficiary does not need to have the penalty payment quantified prior to enforcement.

18. If the debtor challenges enforcement, the creditor of the penalty payment must produce evidence to establish the breaches alleged. It will then be for the court dealing with the enforcement proceedings to decide whether the conditions for payment of the penalty are satisfied.

C – Finnish law

19. Under Finnish law, the imposition of penalty payments to ensure compliance with rights of access is governed by the Law on rights of custody and access (lapsen huoltoa ja tapaamisoikeutta koskevan päätöksen täytäntöönpanosta annettu laki, ‘the TpL’) and by the applicable part of the Law on penalty payments (uhkasakkolaki, ‘Law on penalty payments’).

20. Pursuant to Paragraph 16(2) of the TpL, after a judgment on rights of access has been given, the court before which a case is brought concerning the enforcement of those rights may require the respondent to comply with the judgment, failing which he or she will be subject to a penalty payment.

21. Penalty payments are generally set at a fixed amount. However, if there is a particular reason for so doing, a periodic penalty payment may be imposed (Paragraph 18(1) and (2) of the TpL).

22. Penalty payments must always be paid to the State and not to the other party.

23. Following a fresh application, the court may order payment of the penalty imposed if it considers that there are grounds for doing so. Payment of the penalty may not be ordered where the party subject to the obligation shows that he had good reason for failing to perform the obligation, or where the obligation has been performed in the intervening period (Paragraph 19(1) and (2) of the TpL).

24. The court may reduce the amount of the penalty payment originally imposed if the principal obligation has in substance been performed, if the ability of the party subject to the obligation to pay has significantly deteriorated or if there are other good reasons for reducing the amount (Paragraph 11 of the Law on penalty payments).

25. Paragraph 12(2) of the Law on penalty payments provides that if circumstances have changed or crucial new information has come to light, or if the judgment was based on a clearly incorrect application of the law, the authority which imposed the penalty payment may set aside its judgment and hear the case afresh, in whole or in part.

III – Facts in the main proceedings, questions referred for a preliminary ruling and procedure before the Court

26. According to the order for reference, Christophe Alfons Adrien Bohez and Ingrid Wiertz married in Belgium on 16 May 1997 and had two children. They divorced in 2005 and Ms Wiertz moved to Finland.

27. On 28 March 2007, the tribunal de première instance de Gand (Court of First Instance, Ghent) (Belgium) gave judgment concerning custody, residence, rights of access and maintenance with respect to the children (‘the judgment of 28 March 2007’). In order to ensure compliance with the rights of access granted to Mr Bohez, the court made provision in its judgment for a penalty...