TKF v Department of Justice for Northern Ireland.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:275
• Docket Number: C-729/19
• Date: 12 May 2021
• Procedure Type: Reference for a preliminary ruling
• Celex Number: 62019CJ0729
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Third Chamber)

15 April 2021 (*)

(Reference for a preliminary ruling – Judicial cooperation in civil matters – Recognition and enforcement of decisions in matters relating to maintenance obligations – Regulation (EC) No 4/2009 – Temporal scope – Article 75 – Decisions given by a court of a Member State prior to accession to the European Union)

In Case C‑729/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Court of Appeal in Northern Ireland (United Kingdom), made by decision of 2 September 2019, received at the Court on 2 October 2019, in the proceedings

TKF

v

Department of Justice for Northern Ireland,

THE COURT (Third Chamber),

composed of A. Prechal, President of the Chamber, N. Wahl, F. Biltgen, L.S. Rossi (Rapporteur) and J. Passer, Judges,

Advocate General: G. Hogan,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 14 October 2020,

after considering the observations submitted on behalf of:

– TKF, by R. Lavery QC, C. McGarrity, Solicitor, and M. McGowan, Barrister,

– the Department of Justice for Northern Ireland, by T. McGleenan QC, L. McMahon, Barrister, and K. Brown, acting as Agent,

– the European Commission, by M. Wilderspin, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 12 November 2020,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 75 of 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 2009 L 7, p. 1, and corrigenda OJ 2011 L 131, p. 26, and OJ 2013 L 8, p. 19).

2 The request has been made in proceedings between TKF, who is a Polish national, and the Department of Justice for Northern Ireland, as the Central Authority responsible for discharging the duties arising from that regulation, concerning the recognition and enforcement in the United Kingdom of decisions in matters relating to maintenance obligations that were given in Poland before it acceded to the European Union.

Legal context

EU law

Regulation No 44/2001

3 Article 66 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which is in Chapter VI of the regulation, headed ‘Transitional provisions’, provides:

‘1. This Regulation shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after the entry into force thereof.

2. However, if the proceedings in the Member State of origin were instituted before the entry into force of this Regulation, judgments given after that date shall be recognised and enforced in accordance with Chapter III,

(a) if the proceedings in the Member State of origin were instituted after the entry into force of the Brussels Convention [on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed in Brussels on 27 September 1968 (OJ 1978 L 304, p. 36),] or the Lugano Convention [on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed in Lugano on 16 September 1988 (OJ 1988 L 319, p. 9),] both in the Member State [of] origin and in the Member State addressed;

(b) in all other cases, if jurisdiction was founded upon rules which accorded with those provided for either in Chapter II or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.’

Regulation No 4/2009

4 Recitals 31, 44 and 47 of Regulation No 4/2009 are worded as follows:

‘(31) To facilitate cross-border recovery of maintenance claims, provision should be made for a system of cooperation between Central Authorities designated by the Member States. These Authorities should assist maintenance creditors and debtors in asserting their rights in another Member State by submitting applications for recognition, enforceability and enforcement of existing decisions, for the modification of such decisions or for the establishment of a decision. They should also exchange information in order to locate debtors and creditors, and identify their income and assets, as necessary. Lastly, they should cooperate with each other by exchanging general information and promoting cooperation amongst the competent authorities in their Member States.

…

(44) This Regulation should amend [Regulation No 44/2001] by replacing the provisions of that Regulation applicable to maintenance obligations. Subject to the transitional provisions of this Regulation, Member States should, in matters relating to maintenance obligations, apply the provisions of this Regulation on jurisdiction, recognition, enforceability and enforcement of decisions and on legal aid instead of those of [Regulation No 44/2001] as from the date on which this Regulation becomes applicable.

…

(47) In accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. This is, however, without prejudice to the possibility for the United Kingdom of notifying its intention of accepting this Regulation after its adoption in accordance with Article 4 of the said Protocol.’

5 Article 1 of Regulation No 4/2009, headed ‘Scope of application’, provides in paragraph 2:

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

6 Article 2 of Regulation No 4/2009, headed ‘Definitions’, states in paragraph 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;

…

4. the term “Member State of origin” shall mean the Member State in which … the decision has been given …;

5. the term “Member State of enforcement” shall mean the Member State in which the enforcement of the decision … 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;

…’

7 Chapter IV of Regulation No 4/2009, headed ‘Recognition, enforceability and enforcement of decisions’, is divided into three sections. In accordance with Article 16 of the regulation, Section 1, which consists of Articles 17 to 22, is to apply to decisions given in a Member State bound by the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (‘the Hague Protocol’). Section 2, which comprises Articles 23 to 38, is to apply to decisions given in a Member State not bound by the Hague Protocol. Section 3, which consists of Articles 39 to 43, contains provisions common to all the decisions.

8 As set out in Article 23(1) of Regulation No 4/2009:

‘A decision given in a Member State not bound by the 2007 Hague Protocol shall be recognised in the other Member States without any special procedure being required.’

9 Article 24 of Regulation No 4/2009, headed ‘Grounds of refusal of recognition’, provides:

‘A decision shall not be recognised:

(a) if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought. The test of public policy may not be applied to the rules relating to jurisdiction;

(b) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so;

…’

10 Article 26 of Regulation No 4/2009, headed ‘Enforceability’, is worded as follows:

‘A decision given in a Member State not bound by the 2007 Hague Protocol and enforceable in that State shall be enforceable in another Member State when, on the application of any interested party, it has been declared enforceable there.’

11 Chapter VII of Regulation No 4/2009 contains provisions relating to cooperation between Central Authorities. Those provisions are set out in Articles 49 to 63 of the regulation.

12 Article 51(1) of Regulation No 4/2009 provides:

‘1. Central Authorities shall provide assistance in relation to applications under Article 56 and shall in particular:

(a) transmit and receive such applications;

(b) initiate or facilitate the institution of proceedings in respect of such applications.’

13 Article 55 of Regulation No 4/2009, headed ‘Application through Central Authorities’, states:

‘An application under this Chapter shall be made through the Central Authority of the Member State in which the applicant resides to the Central Authority of the requested Member State.’

14 As set out in Article 56(1) and (2) of Regulation No 4/2009:

‘1. A creditor seeking to recover maintenance under this Regulation may make applications for the following:

(a) recognition or recognition and declaration of enforceability of a decision;

(b) enforcement of a decision given or recognised in the requested Member State;

(c) establishment of a decision in the requested Member State where there is no existing...