The impact of Brexit on Regulation (EC) No 4/2009 relating to jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters of maintenance obligations

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What the Regulation deals with

Regulation (EC) No 4/2009 provides for the rules the court of the Member States of the European Union shall apply in order to determine whether they have jurisdiction to rule upon a claim relating to maintenance obligations arising from family relationships, parentage, marriage or affinity. Furthermore, by referring to the 2007 Hague Protocol, the Regulation governs the law applicable to maintenance obligations. The Regulation also provides for rules on the effectiveness of decisions issued in the matter of maintenance obligations, as well as public documents and court settlements. Finally, the Regulation governs cooperation between central authorities.

The conditions of applicability of the Regulation

The applicability of the rules of the Regulation concerning jurisdiction and applicable law does not depend on the fact that the parties are connected to a Member State rather than to a third State.

The discipline of the Regulation relating to the recognition and enforcement of judicial decisions, public documents and court settlements depends on whether these are issued, concluded or approved by a court of a Member State.

The rules on cooperation between authorities only apply in relations between authorities of Member States.

What changes after the end of the transitional period

The consequences vary depending on the rules of the Regulations considered.

Jurisdiction

The Regulation No 4/2009 contains a complete system for the allocation of jurisdiction, which leaves no room, in the Member States, for the use of other jurisdiction rules. Therefore, the Italian court seised of an application falling within the scope of the Regulation shall apply the rules contained therein also with respect to cases connected with the United Kingdom.

Lis pendens and related actions

After the end of the transitional period, Art(s). 12 and 13 of Regulation No 4/2009 cease to apply in relations between Italy (and the other Member States of the European Union) and the United Kingdom. According to Art. 67, para. 1, lett. d) of the United Kingdom Withdrawal Agreement, these rules are also applicable to proceedings filed before the end of the transition period (31 December 2020).

In proceedings filed in Italy from 1 January 2021 onwards, the prior pending between the same parties of an identical application in the United Kingdom will result in the application of Art. 7 of the Law of 31 May 1995 No 218.

Applicable law

The 2007 Hague Protocol on the law applicable to maintenance obligations, referred to in Art. 15 of the Regulation, applies regardless of whether the case is connected to States bound by the Protocol itself (the United Kingdom, moreover, is not among them). Moreover, its rules are universal in character, that is, they are capable of refer to, as the case may be, both the law of a contracting State and the law of a third State.

Therefore, the Italian courts shall continue to use the Protocol also in cases connected with the United Kingdom.

Recognition and enforcement of decisions

The Regulation No 4/2009, as mentioned, regulates the effectiveness in the Member States of decisions issued in another Member State in the matter of maintenance obligations. With the end of the transitional period, the Regulation then ceases to apply to relations between Italy (and the other Member States) and the United Kingdom.

Pursuant to Art. 67, para. 2, lett. d) of the Withdrawal Agreement, this discipline applies to all decisions issued as a result of a proceeding filed before the end of the transition period, regardless of when the decision is then issued.

The effectiveness in Italy of decisions issued in the United Kingdom following the outcome of proceedings filed after 1 January 2021 is governed by the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, the United Kingdom is party to following the 28 September 2020, without prejudice to the applicability – as recalled by Art. 52 of the same Convention – of possibly more favourable rules.

The considerations set out regarding the effectiveness of the decisions are valid, mutatis mutandis, for public documents and court settlements.

Cooperation between authorities

After the end of the transitional period, in relations between Italy (and the other Member States) and the United Kingdom, the applicability of the rules of the Regulation concerning cooperation between central authorities ceases.

Pursuant to Art. 67, para. 3, lett. b) of the Withdrawal Agreement, these provisions remain applicable to applications for recognition or enforcement of decisions filed before the end of the transition period.

Moreover, since 1 January 2021, the cooperation system referred to in the aforementioned 2007 Hague Convention has been in operation.

Silvia Marino

Note – The legal analysis set out, representing the personal contribution of the author, does not bind the partners of the EJNita – Building Bridges project and does not in any way constitute legal advice.

* The English translation is provided for by the Aldricus Editorial Board; the original version by the author, in Italian, is available in this portal in the corresponding Italian section.