EC Maintenance Regulation
The EC Maintenance Regulation came into force on 18 June 2011 in order to simplify legal relations within Europe, and with regard to the legitimate interests of maintenance creditors, thus making it easier for persons entitled to maintenance to enforce maintenance claims anywhere in Europe. To this end, the Regulation has created a Europe-wide network of Central Authorities to support applicants. The task of the Central Authority is taken on in Germany exclusively by the Federal Office of Justice.
The principle major change brought about by the Maintenance Regulation is the abolition of exequatur (Art. 17 et seqq. of the Maintenance Regulation) in almost all EU Member States. It was previously not possible for a maintenance order to be executed in a foreign state until the order had been accepted for compulsory enforcement in the state of enforcement.
The new regulation permits orders issued after 18 June 2011 to be enforced directly in almost all EU Member States without initiating any further enforcement proceedings. The “declaration of enforceability proceedings” still need to be carried out for orders issued before 18 June 2011, which is still likely to be the majority of cases (cf. Art. 75 of the Maintenance Regulation).
As a further novelty, the Maintenance Regulation provides that requests to carry out specific measures in accordance with Art. 53 of the Maintenance Regulation can be addressed to the Central Authority. These specific measures serve to prepare the application or indeed to provide applicants with information enabling them to decide whether or not to lodge an application (e.g. to determine a person’s residence). For such requests in accordance with Art. 53 of the Maintenance Regulation, the information which is required by Form 5 attached to the Maintenance Regulation must be provided.
The Maintenance Regulation applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity.
It is necessary to distinguish for the course of the proceedings between incoming and outgoing requests. Incoming requests are those in which the applicant has his/her habitual place of residence abroad and therefore an application is received from abroad, whilst in the case of outgoing requests the applicant has his/her habitual place of residence in the Federal Republic of Germany and his/her application is sent abroad. The available applications are listed in Art. 56 of the Maintenance Regulation. The forms attached to the Maintenance Regulation must be used for the applications, and these can be retrieved and completed electronically on the European Commission’s Judicial Atlas.
Applicants who have their customary place of residence in the Federal Republic of Germany can assert their applications in accordance with Art. 56 of the Maintenance Regulation by submitting a request to the Local Court (Amtsgericht) with jurisdiction at the seat of the Higher Regional Court (Oberlandesgericht) (section 7 of the Foreign Maintenance Act). Applicants must complete the relevant form of the Maintenance Regulation, enclose the necessary documents and the necessary translations and submit their application to the court in quadruplicate (section 9 subs. 3 of the Foreign Maintenance Act).
The costs of the translations of the application and of the supporting documents are to be met by the applicant as a matter of principle. The Local Court which has jurisdiction in accordance with section 7 subs. 1 of the Foreign Maintenance Act exempts the applicant on request from the obligation to refund costs incurred for a translation which the Central Authority has arranged if the applicant meets the personal and economic preconditions for instalment-free legal aid in accordance with section 113 of the Act on the Procedure in Family Matters and in Matters concerned with Non-contentious Litigation (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) in conjunction with section 115 of the Code of Civil Procedure (ZPO) (section 10 subs. 3 of the Foreign Maintenance Act).
Persons entitled to maintenance whose place of residence is in a Member State of the European Union can send a maintenance request to the Federal Office of Justice via the Central Authority in their state of residence which has jurisdiction for it. If the request is complete, the latter takes all suitable steps to enforce the maintenance claim. Before however court proceedings are pursued, the Federal Office of Justice attempts to bring about a voluntary maintenance payment. In accordance with section 5 subs. 4 of the Foreign Maintenance Act, the Central Authority is deemed to be empowered to act in the name of the person entitled to maintenance.